Filed 10/22/26 Estate of Jercich CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
Estate of MITCHELL D. 2d Civ. No. B347732
JERCICH, Deceased. (Super. Ct. No. 22PR-0361)
(San Luis Obispo County)
PAUL M. JERCICH,
Petitioner and Respondent,
v.
GEORGE S. JERCICH,
Objector and Appellant.
Appellant George S. Jercich is the brother of decedent
Mitchell D. Jercich. The trial court found respondent Paul M.
Jercich is Mitchell’s son and the administrator of his estate.1
George disputes Paul is Mitchell’s biological son and contends the
court: 1) applied the incorrect burden of proof, 2) rendered a
1 We refer to these individuals by their first names for ease
of reference. No disrespect is intended.
decision that was not supported by substantial evidence, and 3)
improperly denied his motion for DNA testing. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Mitchell died in 2022, unmarried and intestate. Later that
year, Paul filed a petition for probate and request to be appointed
administrator of Mitchell’s estate. In the petition, Paul identified
himself as Mitchell’s son. The petition identified George as
Mitchell’s brother.
The trial court appointed Paul the administrator of
Mitchell’s estate. In March 2023, George filed his own petition to
remove Paul on the ground that he was not Mitchell’s biological
child.
The matter went to trial in 2024. The parties stipulated
that the issues to be decided were: 1) whether Mitchell had held
Paul out as his son, and 2) who was entitled to act as the
administrator of the estate. There is no reporter’s transcript of
the trial proceedings. Instead, there is a settled statement.
At trial, the court heard testimony from Shawneeray
Berryman (Paul’s mother), Paul, Bruce Smith (a friend of
Mitchell’s), and George.
Ms. Berryman testified that she and her son from a prior
marriage had been living with Mitchell for a period of time before
Paul was born. Mitchell was abusive and she left for a few
weeks, but then found out she was pregnant with Paul. When
she told Mitchell about the pregnancy, he told her to come home.
Ms. Berryman and Mitchell were living together and in a
relationship when Paul was born in 1963.
Mitchell was at the hospital during Paul’s birth. Mitchell
was identified on the birth certificate as Paul’s father and Ms.
Berryman gave Paul the middle name “Mitchell.”
2
Mitchell raised Paul as his son and always provided for
him, favoring Paul over Ms. Berryman’s older son and even Ms.
Berryman. Ms. Berryman denied that Mitchell ever suggested
Paul was not his son. Ms. Berryman and Mitchell married in
1972 and divorced in 1981. After the divorce, Mitchell was
granted joint custody and Paul resided with Mitchell.
Paul testified that Mitchell was his father. He, Mitchell,
and Ms. Berryman lived together until Mitchell and Ms.
Berryman divorced. After the divorce, Paul lived with Mitchell
about 75 percent of the time until 1990. The two had a close
relationship. Mitchell fed, clothed, and housed Paul and always
treated him as his son. About seven years before Mitchell’s
death, Paul moved so that he could care for Mitchell. Paul
acknowledged that his half brother and his mother had told him
that Mitchell was not his real father on a prior occasion when
they were angry. Paul nevertheless testified that he always
believed that Mitchell was his real father.
Mr. Smith testified that he had known Mitchell for almost
30 years as a friend and neighbor. Mitchell referred to Paul as
his son, and Paul referred to Mitchell as “Pop.” Paul would take
care of things around Mitchell’s house for him. Mr. Smith
understood Mitchell and Paul were father and son. Mitchell
confided in Mr. Smith that Mitchell felt George was after his
money.
George testified that Mitchell raised Paul and Paul was the
closest person to Mitchell. George testified that Paul was not
Mitchell’s biological son, but this claim was not supported by
evidence that Mitchell disclaimed Paul or denied his paternity.
The trial court admitted Paul’s birth certificate and birth
registration into evidence. These documents identified Mitchell
3
as Paul’s father. The court also admitted a photograph of
Mitchell and Paul and beneficiary designation records reflecting
that Paul was Mitchell’s son and the beneficiary of Mitchell’s
cash assets.
In its oral ruling after trial, the court found Mitchell was
Paul’s natural parent because the relationship was presumed and
not rebutted under Probate Code2 section 6453, subdivision (a)
and, alternatively, Mitchell’s parentage of Paul was established
by clear and convincing evidence that Mitchell held Paul out as
Mitchell’s own child under section 6453, subdivision (b)(2). The
trial court denied George’s petition to be appointed
administrator, leaving Paul as the administrator under section
8461.
George filed posttrial motions, including a motion for new
trial and a motion to compel DNA testing. All posttrial motions
were denied. The trial court denied the DNA motion because it
had already determined the issue of parentage and George failed
to cite authority to support a DNA test.
After George filed a notice of appeal, the trial court
prepared a settled statement. The settled statement includes a
summary of the witness testimony and exhibits admitted into
evidence, and observations by the court. The settled statement
explains the judgment did not hinge on a biological relationship
between Paul and Mitchell. The court’s observations include that
Paul, Ms. Berryman, and Mr. Smith were credible and that there
was a family resemblance between Mitchell and Paul. The
settled statement also memorializes the absence of evidence that
2 Statutory references are to the Probate Code unless
otherwise stated.
4
Mitchell denied he was Paul’s father, refused to care for him, or
disclaimed him in any way.
The settled statement identifies the issues raised by George
on appeal as: 1) the court’s failure to address material credibility
issues, 2) the court’s reliance on incorrect legal authority and
improper burden shifting, and 3) the court’s denial of George’s
motion for DNA testing.
In his opening brief, George also argues the trial court
failed to rule on issues of trust property ownership and
misappropriation, and contends the settled statement is
inaccurate.
DISCUSSION
Standard of review
The judgment of the lower court is presumed correct and
error must be affirmatively shown. (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564.) We review questions of law de novo,
factual findings for substantial evidence (Estate of Burden (2007)
146 Cal.App.4th 1021, 1026), and evidentiary rulings for abuse of
discretion (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887,
900).
The appeal is limited to issues set forth in the settled statement
George contends the trial court failed to rule on issues of
trust property ownership and misappropriation. We disagree.
George stipulated the trial would be limited to a determination of
whether Paul was Mitchell’s son and who was entitled to act as
administrator of Mitchell’s estate. Issues regarding property
ownership and misappropriation were not identified as appellate
issues in the settled statement. And because there is no
reporter’s transcript and the parties proceeded by way of settled
statement, the appeal is limited to the issues identified in the
5
settled statement. (Von Nothdurft v. Steck (2014) 227
Cal.App.4th 524, 534 [“Failure to include issues in the settled
statement precludes the appellant from raising them on
appeal”].) Thus, George’s claims that the court erred by not
deciding issues regarding trust property ownership and
misappropriation lack merit.
George’s claim that the settled statement is inaccurate also
lacks merit. George had an opportunity to object to the settled
statement. He also had the opportunity to move to augment or
modify the record in this court. We granted in part his request to
augment the record, referring the matter back to the trial court.
The trial court considered our order and George’s objections and
certified a revised settled statement. The certified settled
statement reflects the court’s final word on what transpired at
trial. Our review on appeal is confined to the settled statement
and “[i]t is improper to set forth in briefs facts, events, or other
matters not included in the record on appeal.” (People ex rel.
Department of Public Works v. Keligian (1960) 182 Cal.App.2d
771, 774.)
6
Whether the trial court engaged in improper burden shifting
The trial court found Paul qualified as Mitchell’s child
under both subdivision (a) and subdivision (b)(2) of section 6453.
Neither subdivision required Paul to be Mitchell’s biological son
and George concedes the court applied the clear and convincing
evidence standard in connection with subdivision (b)(2). George
nevertheless contends the court erred in analyzing parentage
under subdivision (a), which he asserts led the court to apply a
lesser burden of proof than the clear and convincing evidence
standard.
Given George’s concession that the trial court applied the
correct burden of proof under subdivision (b)(2) of section 6453,
any error in applying a lesser burden of proof in connection with
subdivision (a) is harmless and does not constitute grounds for
reversal. (D’Amico v. Board of Medical Examiners (1974) 11
Cal.3d 1, 19 [judgment will be sustained if right upon any theory
of law applicable to the case].)
Nor has George established that the trial court failed to
apply the correct burden of proof. The settled statement does not
specify which burden of proof the trial court applied to its
analysis under section 6453, subdivision (a). The only standard
expressly identified by the court is the clear and convincing
evidence standard. We presume the court applied the correct
burden absent affirmative evidence to the contrary. (McDermott
Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083,
1103.) There is no evidence establishing the court engaged in
improper burden shifting.
The trial court’s ruling is supported by substantial evidence
George argues the evidence on which the trial court relied
is inadmissible, contradicted by other evidence, and/or is not
7
probative. Consequently, George contends there is no substantial
evidence that Mitchell held Paul out as his own child. We are not
persuaded.
There is substantial evidence that Mitchell held Paul out as
his son. Mitchell asked Ms. Berryman to return to him when he
learned she was pregnant with Paul. He was present at Paul’s
birth. Mitchell is identified as Paul’s father on Paul’s birth
certificate and the birth registration. Paul’s middle name is
Mitchell. Mitchell and Ms. Berryman were living together as a
couple when Paul was born, and they married in 1972. Mitchell
fed, clothed, and housed Paul consistently throughout Paul’s
childhood. Mitchell also held himself out as Paul’s father, and
Paul resided with Mitchell even after his parents’ divorce.
The trial court also found that Ms. Berryman credibly
testified that Paul was Mitchell’s son, and that Paul was
Mitchell’s favorite. The court also found that Paul credibly
testified that Mitchell was his father and held Paul out as his
son. The relationship between them was not a secret and was
observable by friends and neighbors. Mitchell and Paul referred
to one another as father and son. Photographic evidence showed
a family resemblance between Mitchell and Paul. Paul took care
of Mitchell during the latter part of his life. Mitchell left his cash
assets payable to Paul upon Mitchell’s death, and Mitchell
identified Paul as his son and beneficiary. Even George
acknowledged that Mitchell raised Paul.
This evidence is the type that courts regularly consider in
determining whether an alleged parent has openly held a child
out as their own. (E.g., Estate of Britel (2015) 236 Cal.App.4th
127, 133 [considering extent of communication by father to
mother or child, whether father’s name was on birth certificate,
8
and whether father provided financial support]; Estate of Burden,
supra, 146 Cal.App.4th at pp. 1024–1025, 1029–1030 [considering
father’s reaction to news of pregnancy, father’s efforts to marry
mother, amount of communication between father and child, and
absence of evidence father denied paternity].)
In Estate of Martino (2023) 96 Cal.App.5th 596, the
proposed heir was decedent’s stepson for a short period of time
before his mother and decedent divorced. The appellate court
affirmed a finding of parentage because the stepson maintained a
close relationship with decedent and considered him his father;
the son helped with doctor appointments and care when
decedent’s health began to decline; and family and friends
testified that decedent regularly referred to the child as his son.
(Id. at pp. 601–602.) The evidence here is substantially greater
than that presented in Martino. We conclude substantial
evidence supports the trial court’s finding that Mitchell was
Paul’s father.
George contends the birth certificate, photograph, and
beneficiary documents were not authenticated and should not
have been admitted. But George fails to provide a record
reflecting that he timely objected to the admission of these
documents. Nor is there a transcript from which we can evaluate
authentication or the court’s admission of this evidence.
Similarly, George challenges the trial court’s reliance on
Ms. Berryman and Paul’s testimony, claiming that their
deposition testimony contradicts their statements in court. But
the deposition testimony was not admitted as an exhibit and
there is no record as to how or whether the transcripts were
utilized at trial. Without a record, we must presume the court
fairly considered all admissible evidence and made findings based
9
on credibility and other appropriate factors. (Estate of Fain
(1999) 75 Cal.App.4th 973, 992 [“it is presumed that the
unreported trial testimony would demonstrate the absence of
error”].)
George also contends the trial court should not have
considered Mr. Smith’s testimony because it was irrelevant. We
disagree. Mr. Smith testified as to his observations of
interactions between Mitchell and Paul. This evidence was
relevant to whether Mitchell “openly held” Paul out as his son.
(Martino, supra, 96 Cal.App.5th at p. 602 [considering
observations of friends in determining whether parent held out
child as his own].) George also contends the photograph of
Mitchell and Paul was not probative because he disagrees that it
shows a resemblance between them. But this is George’s opinion
and not grounds for reversal. There is no merit to George’s
challenge to the evidence.
George’s motion to compel a DNA test
George additionally contends the trial court erred in
denying his postjudgment motion to compel Paul to submit to
DNA testing. This contention, too, lacks merit. Because the
court had already determined the issue of paternity, there was no
need for DNA testing. The court’s decision did not hinge on the
existence of a biological relationship between Mitchell and Paul.
DISPOSITION
The judgment is affirmed. Paul shall recover his costs on
appeal. Paul’s motion for sanctions is denied.
NOT TO BE PUBLISHED.
10
BALTODANO, J.
We concur:
CODY, P. J.
YEGAN, J.
11
Tana L. Coates, Judge
Superior Court County of San Luis Obispo
______________________________
Roshanian Payman and Tamineh Roshanian for Objector
and Appellant.
Lewi Law and Christopher C. Lewi for Petitioner and
Respondent.