Estate of Gonzales

Estate of Gonzales

Filed 8/7/08 Estate of Gonzales CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

Estate of ROSE ANNA GONZALES, Deceased.
FRANK GONZALES, Petitioner and Appellant, v. LORALEE CERVANTES, as Public Administrator, etc., Objector and Respondent.	F052020 (Super. Ct. No. 06CEPR00720) OPINION

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

Frank Gonzales, in pro. per., for Petitioner and Appellant.

Dennis A. Marshall, County Counsel, and Heather H. Kruthers, Deputy County Counsel, for Objector and Respondent.

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INTRODUCTION

Petitioner/appellant Frank Gonzales (Frank) appeals from the courts denial of his petition to be appointed special administrator with general powers for the estate of his sister, Rose Anna Gonzales (Rose).^[1] At all times relevant in this case, Frank was incarcerated in Corcoran State Prison. Respondent, the Fresno County Public Administrator (Public Administrator), has moved for this court to dismiss the instant appeal as being taken from a nonappealable order. We will grant that motion and dismiss the appeal.

FACTUAL BACKGROUND

On January 12, 2004, Rose died in Los Angeles.

On July 12, 2006, Frank filed a petition for probate in Fresno County Superior Court as to Roses estate. Frank used a preprinted Judicial Council form and checked the boxes requesting letters of administration, letters of special administration with general powers, and authorization to act under the Independent Administration of Estates Act. The petition stated Rose died intestate and was survived by her father, mother, grandfather, three children, and her brother, Frank. The petition did not state the cause of her death, identify any assets, or state the reason Frank requested to be appointed special administrator.

On August 22, 2006, the trial court ordered Frank to file a verified declaration stating why his incarceration would not impede him from being the special administrator of Roses estate, and continued the matter to October 10, 2006.

On October 2, 2006, Frank requested an extension of time to file the verified declaration because he had limited research time in the prison library, and he needed more time to research and prepare the declaration. On October 3, 2006, the court denied Franks request because he failed to state good cause.

On October 6, 2006, Frank filed the verified declaration as required by the court. Frank stated that in November 2003, he was sentenced to six years in state prison following a felony conviction, he was scheduled to be released in 2009, and he expected to be released earlier because of the potential to earn good time custody credit. Frank declared that prior to and contemporaneously with filing the instant probate petition, he maintained a litigation support party to assist in administering decedents estate. He also had social support of next of kin and friends willing to be delegated to execute duties upon his direction until he was released from custody. Frank declared he was fully capable of executing all duties as special administrator given his social support and litigation support, but he did not disclose the size or nature of these groups or identify the members of his support parties.

Frank further declared he planned to file a wrongful death action arising out of Roses death but he could not proceed until he was appointed special administrator of Roses estate. Frank did not explain why he believed a wrongful death action should be filed or against whom it should be filed.

On October 10, 2006, the court conducted a hearing on Franks petition and verified declaration. The instant appellate record does not contain the reporters transcript for this hearing. The minute order states the court found Frank did not have the ability to manage the estates affairs from prison. The court referred the matter to the Public Administrator to file a petition to administer the estate and investigate filing a wrongful death action as requested in Franks declaration.

On November 28, 2006, Frank filed a notice of appeal from the courts order of October 10, 2006 (F052020), which is the matter currently before this court.

Further developments

There were further developments in this case which occurred after Frank filed the notice of appeal. The parties have discussed these developments extensively in their briefing before this court. While these issues are not properly before this court as part of the instant appeal, we will review these developments to put the parties arguments into perspective.^[2]

On January 19, 2007, the Public Administrator filed a status report with the court as to its investigation of whether to probate the estate and file a wrongful death action. As to Roses death, the report stated that Rose died by strangulation in an alley in Los Angeles. A Los Angeles police detective stated that two men were arrested but the charges were dismissed due to the lack of credible witnesses. The Public Administrator concluded there was no one to file a wrongful death action against because of Roses homicide.

As for the estate, the Public Administrator contacted Roses grandfather, who was listed on her death certificate and paid for her funeral. The grandfather stated Rose did not have any assets to probate and her children were in their fathers custody. The Public Administrator requested dismissal of the matter since there were no assets to administer and it was not possible to pursue a wrongful death action.

On January 29, 2007, Frank filed objections with the court as to the Public Administrators status report and its decision not to pursue a wrongful death action in Roses homicide. Frank declared a wrongful death action should be filed against the State of California and the California Department of Corrections and Rehabilitation (CDCR) for the following reasons: Rose had been imprisoned, she advised CDCR that her life was in danger if she was paroled to Los Angeles County, CDCR ignored her pleas and failed to protect her, she was paroled to Los Angeles County, and she was murdered there shortly after being released on parole. Frank complained the Public Administrators investigation was perfunctory and failed to consider Franks perspective on the matter, and demanded the Public Administrator reconsider its decision about not filing a wrongful death lawsuit.

On February 6, 2007, the court convened a hearing as to Franks objections, and ordered the Public Administrator to investigate Franks new allegations and contact the relevant state authorities as to Roses parole status.

On March 12, 2007, the Public Administrator filed a declaration with the trial court as to its further investigation of Roses incarceration and parole status. It determined that Rose had a history of prostitution and drugs, and she was sent to Valley State Prison in October 2003. On January 1, 2004, she was paroled to Los Angeles County, pursuant to the policy of paroling an inmate to the county of last residence or commitment. The Public Administrator requested information as to whether Rose requested to be paroled to Fresno County, and it did not receive any response from the relevant state agency. Roses grandfather, who lived in Fresno, stated that Rose stayed with him until January 9 or 10, 2004, when she took a bus to Los Angeles. She was supposed to report to her parole officer the following week. On January 12, 2004, the grandfather was advised by the Los Angeles Police Department that Rose had been murdered and her body was found that morning. The grandfather did not say that Rose objected to being paroled to Los Angeles or that she feared for her life there. The Public Administrator concluded there was no evidence Rose feared for her life in Los Angeles or that she requested to be paroled to another county, and there was no basis for a wrongful death action against the state.

On March 13, 2007, the court conducted a hearing on the Public Administrators report, and continued the matter to April 24, 2007, so that Frank could respond to the report.

On April 24, 2007, the court denied Franks petition for probate and dismissed the entire matter since Frank did not file a response as ordered.

On May 22, 2007, Frank filed a belated response with the court as to the Public Administrators report. Frank complained that he attempted to file a request for an extension of time to respond to the Public Administrators report but the clerk rejected it. Frank again declared that Rose repeatedly requested not to be paroled to Los Angeles County because her life was in danger and she had no ties to the area, CDCR ignored her pleas, CDCR failed to provide for her safety, and she was murdered shortly after she was released on parole. Frank declared the Public Administrator failed to investigate these issues, and the court should direct the Public Administrator to file a wrongful death action against the state and CDCR.

The superior court file does not contain any further notices of appeal or requests for appellate or writ review of the courts rulings which occurred after the notice of appeal was filed in this case.

Appellate briefs and motion to dismiss

On June 4, 2007, Frank filed the appellate brief in this case, and extensively discussed the developments which occurred after he filed the notice of appeal, particularly his challenges to the Public Administrators investigation. Frank asserts that a wrongful death action should be filed against the state and CDCR because Rose was released on parole to Los Angeles County even though she feared for her life there. Frank further asserts that after Roses death, all next-of-kin were notified in a timely manner except for Frank, and no other relative applied for issuance of letters testamentary until Frank filed the instant petition to preserve the right to timely file a wrongful death action within the applicable statute of limitations. Frank did not state when he learned about her death or CDCRs alleged misconduct.^[3]

Frank contends the court should have appointed him as special administrator of Roses estate and such an appointment was required so he could file the wrongful death lawsuit against the state. Frank further challenges the validity of the Public Administrators limited inquiry and misdirected investigation as to whether a wrongful death action could be filed. He argues: In not appointing a Special Administrator for this purpose or issuing letters to [Frank] as the Personal Representative of decedent, the lower court is essentially handcuffing the ability of [Frank] to commence action for redress due to his sisters untimely death.

On July 2, 2007, the Public Administrators office filed a motion with this court to dismiss the instant appeal as being taken from a nonappealable order, i.e., the trial courts denial of Franks petition to be appointed special administrator of Roses estate. The motion asserts that Frank cannot challenge the Public Administrators investigation through the instant appeal, and he must file a petition for writ of mandate as to the validity of the county agencys discretionary decision not to probate the estate or file a wrongful death action.^[4]

On November 20, 2007, Frank filed a response to the Public Administrators motion to dismiss, and argues the courts denial of his petition for probate constitutes an appealable order and any appellate limitations should be ignored because of basic principles of fairness. In the alternative, Frank asserts he has standing to challenge the adequacy of the Public Administrators investigation since it had been ordered by the same court which denied his petition.

On March 28, 2008, the Public Administrator filed its appellate brief with this court, and restated its contentions as to why the instant appeal should be dismissed and the appropriate remedy to challenge the Public Administrators discretionary decisions was through a petition for writ of mandate.

DISCUSSION

Frank raises several issues in the instant appeal: whether the court properly denied his petition to be special administrator of Roses estate, the adequacy of the Public Administrators investigation, and the merits of a wrongful death lawsuit against the state. For purposes of the instant appeal, however, it is important to focus on the disputed question raised by the notice of appeal that Frank filed in this court: the correctness of the courts order of October 10, 2006, which denied his petition to be appointed special administrator with general powers for Roses estate.

We begin with a brief review of the courts power to appoint personal representatives and special administrators for an estate. The court may appoint a general personal representative with broad powers to administer the probate of a decedents estate. The general personal representative may be either a person or a firm, consisting of either an executor as named in the decedents will, a successor to the executor, or an administrator if the decedent died without a will naming an executor. When there is no general personal representative for an estate, the court may appoint a special administrator with powers limited to those specifically authorized by the court to administer the estate. (Estate of Hilton (1996) 44 Cal.App.4th 890, 894-895, fn. 1.) A special administrator with general powers has the same authority and is subject to the same obligations as a general personal representative. (Ross, Cal. Practice Guide: Probate (The Rutter Group 2007)  14:23, p. 14-8 (Ross).)

A special administration is initiated by filing a petition requesting appointment of a special administrator or for letters of special administration. (Ross, supra,  14:29, p. 14-9.) The petitioner must attach a statement specifying the particular circumstances why a special administration is necessary and indicating the powers requested. (Ross, supra,  14:37, p. 14-11.) The general purpose of a special administration is to empower a specific individual or entity to act temporarily on behalf of the estate (usually for limited purposes) when there is otherwise no person authorized to do so . (Ross, supra,  14:1, p. 14-1, italics in original; Prob. Code,  8540-8547.) The statutory scheme broadly authorizes the appointment of a special administrator [i]f the circumstances of the estate require the immediate appointment of a personal representative .... (Prob. Code,  8540, subd. (a).) Such circumstances may include a situation where a lawsuit must be brought or maintained on decedents behalf. (Ross, supra,  14:7.1, pp. 14-3-14.4.) The probate court has full discretion to determine whether the circumstances of the estate warrant a special administration and, if warranted, to appoint a special administrator to exercise any powers that may be appropriate under the circumstances for the preservation of the estate. (Ross, supra,  14:7.2, p. 14-4, italics in original.)

The Code of Civil Procedure provides the general authority for an appeal from orders rendered in probate proceedings. (Ross, supra,  3:575, p. 3-124.7.) An appeal may be taken [f]rom an order made appealable by the provisions of the Probate Code .. (Code Civ. Proc.,  904.1, subd. (a)(10).) It is well established that [a]ppeals which may be taken from orders in probate proceedings are set forth in ... the Probate Code, and its provisions are exclusive. [Citation.] There is no right to appeal from any orders in probate except those specified in the Probate Code. [Citation.] Appeals in general probate ... matters are limited. [Citation.] [I]f there was a free appeal in every probate matter, estates could be unreasonably delayed. (In re Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1125-1126.)

An order appointing or refusing to appoint a person as special administrator is not appealable. (Prob. Code,  1303, subd. (a); Ross, supra,  14:51a, p. 14-16; see also In re Hewitts Estate (1958) 160 Cal.App.2d 584, 586.) To allow an appeal from an order denying a petition for appointment of a special administrator would be contrary to the Probate Codes purpose to foster the expeditious resolution of estate matters. (In re Estate of Stoddart, supra, 115 Cal.App.4th 1118, 1126.) An appeal taken from a nonappealable order should be dismissed. (In re Hewitts Estate, supra, 160 Cal.App.3d at pp. 586-587.)

Franks notice of appeal in the instant case is from the courts denial of his petition to be appointed special administrator of Roses estate. Such an order is not appealable and the instant matter must be dismissed. We also decline to treat the instant appeal as a petition for writ of mandamus, which should only be done under extraordinary circumstances compelling enough to indicate the propriety of a petition for writ ... in the first instance .... (Estate of Weber (1991) 229 Cal.App.3d 22, 25.) Routine granting of requests to treat improper appeals as writs where there are no exigent reasons for doing so would only encourage parties to burden appellate courts with reviews of intermediate orders. (Ibid.)

Even if the instant appeal was cognizable, Frank could not have expanded it to address the subsequent developments in this case, particularly his challenges to the adequacy of the Public Administrators investigation. An appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration. (In re James V. (1979) 90 Cal.App.3d 300, 304.) Franks notice of appeal was from the courts denial of his petition to be appointed special administrator, so that even if this court could have considered the instant appeal, it would not have addressed the courts rulings as to the Public Administrators investigation. While a petition for writ of mandate may have been the appropriate vehicle for such arguments, the superior court file herein infers that he has abandoned these issues.

DISPOSITION

The appeal is dismissed.

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Gomes, J.

WE CONCUR:

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Vartabedian, Acting P.J.

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Wiseman, J.

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^[1]We refer to the parties by their given names for the sake of clarity only; we intend no disrespect. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 280, fn. 1.)

^[2]We hereby take judicial notice of the record in Fresno County Superior Court case No. 06CEPR00720, In re Estate of Rose Anna Gonzales. (Evid. Code,  452, subd. (d).)

^[3]Franks arguments about the need to file a wrongful death or civil rights lawsuit beg the question as to the timeliness of filing such an action. The statute of limitations for both a wrongful death action under state law, and a civil rights action brought pursuant to 42 United States Code section 1983, is two years. (Code Civ. Proc.,  335.1; San Diego Gas & Elec. Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1549; Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 747; Knox v. Davis (9th Cir. 2001) 260 F.3d 1009, 1012-1013.) Moreover, a civil action filed against a governmental entity must comply with the requirements of the Government Tort Claims Act, such that a claim must be presented to the entity no later than six months after the accrual of the cause of action. (Gov. Code, 911.2, subd. (a), 945.4.)

A wrongful death action accrues on the date of death or when the plaintiff discovers or has reason at least to suspect a factual basis for its elements. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) A civil rights action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action. (Knox v. Davis, supra, 260 F.3d at p. 1013.)

Rose died in January 2004 and Frank filed the petition for probate in July 2006, with the intent to file a wrongful death lawsuit as soon as he was appointed special administrator of her estate. In the course of the probate action, Frank never addressed the obvious problem with the statute of limitations as to either a wrongful death or civil rights lawsuit, or explained why the doctrine of delayed discovery might apply, but vaguely states in his appellate brief that he filed the probate petition [u]pon discovery of the demise of his sister.

^[4]The parties raise a peripheral issue about the correct caption for the instant case. The Public Administrator complains that Franks appellate brief improperly identified the case as Gonzales v. Cervantes, whereas the case should be captioned In re Estate of Gonzales. Frank asserts he simply used the caption as set forth by the court. Our caption, ante, is the correct form of reference for this probate matter: Estate of Rose Anna Gonzales, Deceased. (See Jessen, Cal. Style Manual (4th ed. 2000)  6.27[A], p. 229.)