Estate of Hunt

Filed 5/22/08 Estate of Hunt 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

Barbara Ann Hunt, in pro. per., for Defendant and Appellant.

Betty Marie Glover, in pro. per., for Petitioner and Respondent.

-ooOoo-

Respondent Betty Marie Glover (Betty) filed a petition in the probate court to be appointed executor of the will of decedent, Zelma Christene Hunt. Objection to the petition was made by her sister, appellant Barbara Ann Hunt (Barbara).^[1] Barbara appeared at the scheduled hearings, made oral argument and filed volumes of papers in support of her objection. The probate court ultimately granted the petition and appointed Betty as executor of decedents will. Barbara appeals, contending she was denied due process. We will affirm the order.

FACTS AND PROCEDURAL HISTORY

Decedent died on or about January 18, 2006, and was survived by her three adult children, Betty, Barbara and Donald Hunt. Decedents testamentary papers included a will that left her property in equal shares to her aforesaid three children and named Betty to serve as executor of the will.

On May 31, 2007, Betty filed a petition requesting that decedents will be admitted to probate and that she (Betty) be appointed as executor thereof. A proof of service indicated that the petition and attached papers were served by mail on Betty, Barbara and Donald Hunt. The notice of petition referenced the hearing date of July 3, 2007, and thereafter a declaration was filed to confirm that notice was also given by publication in a newspaper of general circulation in Fresno County.

On June 28, 2007, Barbara filed a written objection to the petition, asserting among other things that the proof of service was defective. Barbaras objection included a request for a continuance in order to allow time to retain an attorneys help, and she informed the probate court that she wanted someone outside the family to serve as personal representative to administer the estate of decedent. Barbaras written objection accused Betty of wrongdoing in connection with managing decedents business affairs when Betty allegedly acted in the capacity of trustee of decedents living trust and/or pursuant to a power of attorney. Although a number of documents were submitted to the probate court concerning these vague accusations, including copies of the decedents living trust and power of attorney, the record is completely devoid of any evidence of actual wrongdoing on Bettys part.^[2]

At the hearing on July 3, 2007, Barbara claimed service was defective but admitted that she received the petition. It arrived on her porch by mail at 2475 South Walnut, Fresno, California. Barbara indicated she had two mailing addresses, one of which was 246 West Byrd and the other was 2475 South Walnut. The address listed on the proof of service mistakenly identified her street as East Byrd rather than West Byrd. In any event, the United States Postal Service was apparently able to successfully deliver the petition to her alternate address at 2475 South Walnut. The probate court asked, So you did receive the paperwork? and Barbara replied, That is why I am here today. (Italics added.) The hearing date was continued to July 31, 2007, both to accommodate Barbaras request for a continuance and because Bettys attorney needed time to respond to issues raised by Barbaras written objections.

At the continued hearing on July 31, 2007, the probate court noted that it could not ascertain from the court file whether all parties had received a copy of the will. The probate court therefore continued the hearing to August 21, 2007, and instructed Bettys attorney to serve a copy of the will on all parties and to file a new proof of service prior to the continued hearing date. Proofs of service were filed on August 7, 2007 by Bettys attorney, showing that Barbara was re-served with copies of the petition and the will on July 31, 2007. The proofs of service showed Barbaras mailing address as 246 West Byrd, Fresno, California. On August 21, 2007, the probate court articulated its concern about the irregularity in the will regarding the timing of signatures and notarization, but noted that the beneficiaries would be the same whether the matter proceeded under the will or intestate. The hearing was continued one more time in order to allow the probate court additional time to consider the issues.

At the final hearing on August 28, 2007, the probate court invited Barbara to present oral argument on any matters that were not already set forth in her papers. Barbara proceeded to make her oral presentation. At the end of the hearing, she reiterated her objection that the original proof of service (which had listed her address as 246 East Byrd) was defective. The probate courts response was emphatic: But you have been here every time in Court. The Court finds you have received notice []. [You h]ave admitted in Court you received the paperwork. [] [] And you filed at least 12 inches of your paperwork in the Court file already so your issue is not -- is not, um, relevant to this petition. Following this exchange, the probate court admitted the will to probate, appointed Betty as executor of the will and required bond to be posted in the sum of $276,000.

Barbara timely filed notice of appeal from the probate courts order appointing Betty as executor.

DISCUSSION

The sole ground for Barbaras appeal is that she was denied due process because she allegedly did not have an opportunity to be heard or to present her case to the probate court.

We find Barbaras due process claims to be utterly without merit. First, even if there was a technical defect in the mailing address on the proof of service, Barbara admitted that she actually received the petition and was notified of the hearing date. Second, any technical defect in the original proof of service was amply cured by the probate courts several lengthy continuances of the hearing date and the re-service of the petition and will. Third, Barbara not only had notice of each and every hearing, but personally appeared, submitted extensive paperwork, and had an opportunity to present oral argument. (See Estate of Pailhe (1952) 114 Cal.App.2d 658, 661 [appearance waived defect in service]; Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930 [appearance to argue merits waives defective service]; Estate of Poder (1969) 274 Cal.App.2d 786, 791 [rule summarized].) We conclude from the record that Barbara received adequate notice and opportunity to be heard in accordance with Probate Code section 8110^[3]and general principles of due process.

Moreover, Barbaras vague due process claim is largely unintelligible and is unsupported by relevant argument or citation to pertinent legal authority. We therefore deem it to be without foundation. (Landry v. Berryessa Union School Dist., supra, 39 Cal.App.4th at p. 699; Kensington University v. Council for Private Postsecondary etc. Education (1997) 54 Cal.App.4th 27, 42-43.) We also emphasize the basic rule of appellate review that the trial courts judgment or order is presumed correct (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563) and it was Barbaras burden to demonstrate the existence of prejudicial error (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337; State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610). This she has failed to do.

DISPOSITION

The order of the probate court is affirmed. Costs are awarded to Betty.

_____________________

Kane, J.

WE CONCUR:

_____________________

Cornell, Acting P.J.

_____________________

Hill, J.

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^[1] Our use of first names in this case is for convenience only and no disrespect is intended thereby.

^[2] In the probate court, Barbara also questioned the veracity of the witnesses attesting the will and the notary public who provided a notarization. The court acknowledged the apparent irregularity as to the timing of decedents signature -- i.e., the date indicated in the text of the will differed from the date of notarization. However, the court ultimately admitted the will to probate, indicating that notarization was unnecessary to the wills validity, the will appeared to be adequately signed and witnessed, and its execution was sufficiently proven by a subscribing witness. (See Prob. Code,  6110, 8220.) Barbara has not raised any of these issues on appeal nor has she challenged the courts determination to admit the will to probate. We therefore do not consider such matters. When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)

^[3] Barbara failed to refer to this section, which is the applicable provision regarding service of notice of hearing of the subject petition. It provides that service shall be made on each heir, by mail or personal delivery, at least 15 days prior to the hearing. (Prob. Code,  8110.) Obviously, Barbara had more than 15 days notice under the circumstances described herein.