Estate of Mauzey

Filed 11/21/07 Estate of Mauzey CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Joan F. Burgess, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed as to case No. E038344. Affirmed as to case No. E041215.

No appearance for Petitioner and Respondent Larry Mauzey.

Carroll & Werner and Lee G. Werner for Claimant and Appellant and for Claimant and Respondent.

Jimenez & Small, David G. Jimenez; Ritchie Klinkert & McCallion and James E. Klinkert for Contestants and Respondents and for Contestants and Appellants.

Mary J. Casserly and D. Stephen Monson for Petitioner and Respondent Ronald Mauzey.

In these consolidated appeals, we review an order denying a petition to probate a will and an order granting a subsequent petition, by a different proponent, to probate the same will.

The will was discovered after letters of administration had been issued based on a finding that the decedent was intestate. In the first proceeding, the proponent of the will was aware of the pending proceedings to administer the intestate estate at the time he discovered the will, but he did not file his successor petition for probate until more than 120 days after the court issued its order determining intestacy and until more than 60 days after he had knowledge of the will. The probate court ruled that the successor petition was barred by the time limits set forth in Probate Code section 8226, subdivision (c).^[1]

In the second proceeding, the court found that the petition for probate was timely because the proponent, who had not received notice of the prior probate proceedings, filed the petition within 60 days after he learned of the wills existence.

We will affirm both orders.

BACKGROUND

Ruth Mauzey, the appellant in the first appeal, (hereafter Ruth),^[2]is the principal beneficiary under the will of her deceased son, Don Mauzey. Ronald Mauzey, the proponent of the will and a respondent in the second appeal, is the brother of Don Mauzey and is also a beneficiary under the will.

Don Mauzey died on June 2, 2002, in Riverside. On July 16, 2002, his daughter, Kelly Mauzey, filed a petition to administer the estate, asserting that Mauzey died intestate. The notice of petition was served on Kelly and her brother James Mauzey (hereafter sometimes referred to collectively as contestants), the only heirs, and was duly published. The petition was granted on February 24, 2003, based upon a finding of intestacy, and letters of administration were issued to Kelly.

In August 2003, Larry Mauzey, the decedents brother, learned that the decedent left a will dated November 14, 1995. The will left $100 each to Kelly and James. It made bequests totaling $25,000 to Ronald Mauzey, two nieces and a nephew, and left the residue of the estate to the decedents parents, Ruth and Wayne.^[3] The value of the estate was estimated to exceed $1 million.

Larry filed a petition to probate the will on December 4, 2003. James filed an objection to the successor petition, asserting that it was untimely pursuant to section 8226(c). Ruth filed a brief in support of the petition for probate.

After argument, the court issued a tentative statement of decision denying the successor petition based on its finding that Larry had knowledge of the pending proceedings to administer the estate and that he failed to file his probate petition within 60 days after he had knowledge of the will. After supplemental briefing and further argument, the court adopted the tentative statement of decision as its final statement of decision. The order denying the successor petition was entered on June 1, 2005. Ruth filed a timely notice of appeal.

While the first appeal was pending, attorney Mary Casserly paid a visit to Ronald Mauzey, the decedents brother who was a beneficiary under the will. Ronald had been incarcerated since 1981, and was then serving a sentence for murder in the state prison at Soledad. Ms. Casserly told him about his brothers will and obtained his signature on a blank petition for probate. His signature was dated August 11, 2005. The petition asserted that Ronald did not receive any notices in the existing probate proceeding and that he first obtained knowledge of the decedents will on August 11, 2005. The petition was filed on October 6, 2005.^[4] James and Kelly filed an objection to the petition, asserting that Ronald had had notice of the will before August 11, 2005. They asserted that the petition was not timely because Ronald had received notice of Larrys petition to probate the will in 2003, or in the alternative, that the courts prior finding that the petition filed by Larry Mauzey was barred by section 8226(c) was binding on the second petition as well.

After a hearing at which Ronald Mauzey testified by telephone, the court found his testimony that he had no knowledge of the will before August 11, 2005, to be credible. The court found that all prior notices were purportedly served on Ronald at an address in Oklahoma that Larry Mauzey knew was not Ronalds, and that Ronald had never authorized Larry to serve him with notice at that address. The court further found that the petition was timely, was not barred by res judicata or collateral estoppel, and was not stayed by the pending appeal from the order denying Larry Mauzeys petition for probate. The court ordered the will admitted to probate.

James and Kelly filed a timely notice of appeal from that order. On Ruths motion, we ordered the two appeals consolidated for argument and decision. We withdrew the tentative opinion that had been issued in case No. E038344.

LEGAL ANALYSIS

Case No. E038344

LARRY MAUZEYS PETITION FOR PROBATE IS TIME-BARRED

Section 8226, subdivision (b) provides that a will may be admitted to probate notwithstanding the prior admission to probate of another will or prior distribution of property in the proceeding, subject to subdivision (c). Section 8226(c) provides:

If the proponent of a will has received notice of a petition for probate or a petition for letters of administration for a general personal representative, the proponent of the will may petition for probate of the will only within the later of either of the following time periods:
(1) One hundred twenty days after issuance of the order admitting the first will to probate or determining the decedent to be intestate.

(2) Sixty days after the proponent of the will first obtains knowledge of the will.

It is undisputed that Larry did not file the successor petition until more than 120 days had elapsed after the court issued its order for administration of the intestate estate and until more than 60 days had elapsed from the date he had knowledge of the will. Ruth contends that the time limits contained in section 8226(c) were never triggered or simply do not apply because Larry was not served with notice of Kellys petition for administration and because he was not entitled to such notice.^[5],[6] She argues that section 8226(c) was enacted solely to prevent active participants in the pending administration of a decedents estate from delaying in submitting a subsequently discovered will for probate, to the detriment of creditors or devisees in connection with the administration of an estate well in progress. Thus, she contends, the statutes time limitation does not apply to any person who is not statutorily entitled to notice. She also contends that the phrase has received notice of a petition for probate or a petition for letters of administration as used in section 8226(c) means that the physical notice of petition must be served upon the proponent of the will in order to trigger the time limits for filing a successor petition. She urges us to so construe the statute.

The interpretation and applicability of a statute is a question of law, which we review independently. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) In interpreting a statute, our function is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. (Mejia v. Reed (2003) 31 Cal.4th 657, 663.) Because the statutory language is generally the most reliable indicator of legislative intent, we first examine the words themselves, giving them their usual and ordinary meaning and construing them in context. (Ibid.) If the language is unambiguous, we look no further than the language itself. (People v. Jones (1993) 5 Cal.4th 1142, 1146.) When the language is ambiguous, we may look to the legislative history of the enactment or to other extrinsic aids to determination of the Legislatures intent. We may also examine the public policy the enactment is meant to further. (Mejia v. Reed, supra, 31 Cal.4th at p. 663.)

We do not agree that by its plain meaning, the statutory language requires service of the notice of petition. On the contrary, the statute refers to receipt of notice, not service. (Cf. 16061.8 [No person upon whom the notification by the trustee is served pursuant to this chapter may bring an action to contest the trust more than 120 days from the date the notification by the trustee is served upon him or her . . . . (Italics added.)].)

 The plain language of the statute also does not denote that the proponent of the will must have received the physical document. Notice has a number of definitions in ordinary usage, including warning or intimation of something and the condition of being warned or notified -- usually used in the phrase on notice. It also means a written or printed announcement. (Merriam-Webster Online Dict.  [as of November 12, 2007].) In legal usage, notice has the same range of meaning, including knowledge, awareness or information that would lead to knowledge, as well as written notification. (Blacks Law Dict. (8th ed. 2004) pp. 1090-1091.) Section 8226(c) does not say that the proponent must have received the notice of petition or a notice of petition, as would be expected if it were referring to a document. Rather, it provides that the proponent must have received notice of a petition. This phrasing clearly uses notice in the sense of knowledge, awareness or information that would lead to knowledge. Thus, section 8226(c) provides that in order for the time limits to apply, the proponent must have notice of the existence of a prior petition. It does not require receipt of the physical document.

 The history of the enactment also demonstrates that the Legislature was not concerned with the will proponents receipt of the physical document, but rather with the proponents awareness that probate or administration proceedings were pending but not yet final. Prior to the enactment of subdivision (c), section 8226, subdivision (b) provided that, A will may be admitted to probate notwithstanding prior admission to probate of another will or prior distribution of property in the proceeding. The will may not affect property previously distributed, but the court may determine how any provision of the will affects property not yet distributed and how any provision of the will affects provisions of another will. (Stats. 1990, ch. 79,  14.) The sponsor of the amendment that ultimately became subdivision (c) expressed concern that although [e]xisting law effectively prevents a proponent of another will from petitioning for probate of that other will after the petition for final distribution, the statute as then in effect [did] not prevent the proponent of the other will from delaying disclosure of that instrument beyond the period when devisees and creditors have acted in reliance on the earliest admitted will. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1172 (1997-1998 Reg. Sess.)  20 (hereafter Analysis of Assem. Bill No. 1172).) Accordingly, the proposed amendment would require that anyone having notice of a petition for probate or a petition for appointment of a general personal representative must offer another will within specified timelines. (Analysis of Assem. Bill No. 1172, supra,  20, italics added.) Thus, the purpose of the amendment was to minimize the effect of competing wills on the orderly and timely resolution of claims against an estate and distribution of the estate by requiring proponents of competing wills to submit them for probate promptly. 

 The analysts statement that anyone having notice of a petition for probate . . . must offer another will within specified timelines (Analysis of Assem. Bill No. 1172, supra,  20) reflects an intent to apply the time limits broadly, rather than limited to active participants in the pending proceedings, as Ruth contends. It cannot be an uncommon state of affairs that, as in this case, the proponent of a competing will is not among the people who are entitled to notice of a petition for administration (the decedents heirs) or those who are entitled to notice of a petition for probate (each devisee and executor named in the will). ( 8110, subds. (a), (b).) Limiting the operation of section 8226(c) to those who are entitled to statutory notice, as Ruth suggests, would therefore impede, rather than further, the legislative purpose of requiring anyone having notice of pending proceedings for probate or administration to come forward promptly with a competing will. (Analysis of Assem. Bill No. 1172, supra,  20.)

 Thus, based both on the statutory language and the history and purpose of section 8226(c), we conclude that section 8226(c) applies to any person who has notice or knowledge that a petition for probate or administration has been filed.

 Here, the trial court found that Larry had actual knowledge of the petition to administer the estate as early as August 2002, and by his own admission, Kelly gave him a copy of the order issuing letters of administration in April 2003. Ruth does not dispute these findings. Because Larry had notice of pending proceedings on the petition to administer the estate at the time he learned of the will, he was required to file his successor petition within 60 days after he became aware of the will.[7] ( 8226(c)(2).) He did not file the petition until December 2003. The successor petition was thus time-barred.

Case No. E041215

RONALD MAUZEYS PETITION FOR PROBATE WAS PROPERLY GRANTED

 In the second appeal, contestants make a number of contentions that are based on the premise that the courts order denying Larrys petition for probate foreclosed Ronalds subsequent petition for probate. In order to avoid repetition, we address that underlying premise first.

 Any interested party may petition to probate a will [a]t any time after [the] decedents death. ( 8000, subd. (a).) Interested parties include beneficiaries, such as Ronald.[8] ( 48.) Section 8000 imposes no time limits on the filing of a petition for probate. 

 The unambiguous language of section 8226(c) makes it clear that its time limits apply to each proponent of the will individually and depend upon whether each proponent has received notice of the pending proceedings and upon the date on which the proponent obtained knowledge of the will. The legislative history of subdivision (c), discussed above, supports this conclusion as well. Contestants have provided no authority that holds or even suggests otherwise. Thus, the timeliness of Ronalds petition depends entirely on factors personal to Ronald, i.e., whether he had notice of the prior proceedings and when he first obtained knowledge of the will. The prior determination that Larry had notice of the pending petition for intestate administration and had knowledge of the will outside the time limits provided for in section 8226(c) thus has no bearing on the timeliness of Ronalds petition for probate.[9]

 Contestants contention that as a beneficiary, Ronald was bound by Larrys actions as the proposed executor under the will does not change this result. Ronald is indeed bound by the order denying Larrys petition, but that order has no bearing on Ronalds independent right, as an interested party, to file a petition to probate the will.

 We now address contestants remaining contentions.

The Pending Appeal Did Not Stay the Proceedings on the Second Petition

Contestants contend that Code of Civil Procedure section 916 divested the trial court of jurisdiction to decide Ronalds petition while the appeal in case No. E038344 was pending.

As pertinent, Code of Civil Procedure section 916 provides, Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. (Code Civ. Proc., 916, subd. (a).) As to any matter embraced within the judgment under appeal or affected by it, the trial court lacks subject matter jurisdiction. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 197-198 (hereafter Varian).)

 The proceedings on Ronalds petition for probate were not embraced within or affected by Ruths pending appeal within the meaning of Code of Civil Procedure section 916, subdivision (a). The purpose of the statute is to protect the appellate courts jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it. [Citation.] (Varian, supra, 35 Cal.4th at p. 189.) Thus, [W]hether a matter is embraced in or affected by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the effectiveness of the appeal. [Citation.] If so, the proceedings are stayed; if not, the proceedings are permitted. [Citation.] (Ibid.)However, The fact that the postjudgment or postorder proceeding may render the appeal moot is not, by itself, enough to establish that the proceeding affects the effectiveness of the appeal and should be stayed under section 916. Rather, something more is needed. For example, the trial court proceeding must directly or indirectly seek to enforce, vacate or modify [the] appealed judgment or order. [Citation.] Or the proceeding must substantially interfere with the appellate courts ability to conduct the appeal. [Citation.] (Id. at pp. 189-190, fn. omitted.)

Here, the admission of the will to probate based on Ronalds petition arguably renders moot any decision as to whether the court correctly found Larrys petition time-barred, in that granting Ronalds petition achieves the same effect that Larrys petition would have achieved, had it been timely. Nevertheless, Ronalds petition is not a matter affected by the order denying Larrys petition because the two are completely independent of one another. Ronalds petition in no way sought to enforce, vacate or modify the order denying Larrys petition. (Varian, supra, 35 Cal.4th at p. 189.) Rather, because any interested party, including a person named in the will as beneficiary, may petition to probate a will ( 48, 8000, subd. (a)), Ronalds right to file his petition is independent of the right of any other interested party to do so. For this reason, too, the possible outcomes on appeal as to the orders on the two petitions are not irreconcilable. (Varian,at p. 190.) Thus, because Ronalds right to file his petition is independent of Larrys right to do so, Code of Civil Procedure section 916, subdivision (a) did not divest the trial court of jurisdiction to determine Ronalds petition while Larrys appeal was pending. (Varian, at pp. 196-197.)

There Was No Collateral Attack on the Trial Courts Jurisdiction

Contestants next contend that because the original order for probate had become final, Ronalds petition constituted a collateral attack on the courts jurisdiction and was barred by section 8007. They contend that the court therefore had no jurisdiction to entertain the petition.

Section 8007, subdivision (a) provides, Except as provided in subdivision (b), an order admitting a will to probate or appointing a personal representative, when it becomes final, is a conclusive determination of the jurisdiction of the court and cannot be collaterally attacked. The order is conclusive, however, only as to the jurisdictional facts, i.e., the date and place of the decedents death; that the decedent was domiciled in this state or left property in this state at the time of death; and the publication of notice. ( 8005, subd. (b)(1), 8006.) It does not preclude a petition to probate a later-discovered will, and such a petition is not a challenge to the courts jurisdiction over the decedents estate. On the contrary, the Probate Code clearly authorizes petitions to probate wills discovered after the appointment of an executor or administrator. Section 8504 expressly provides that an administrator appointed on grounds of intestacy, as was the case here, is to be removed from office upon the later admission to probate of a will. ( 8504, subd. (a).) And, section 8226(c) provides that the proponent of a will can petition for probate of the will after the issuance of an order admitting another will to probate or determining the decedent to be intestate. ( 8226(c)(1).)

The cases cited by contestants are inapposite. In Estate of Black (1943) 56 Cal.App.2d 796, the court held that a document filed after the admission of a will to probate constituted an attack on the jurisdiction of the probate court. However, that document was not a petition to probate a different will; rather, it was in the nature of a will contest. Having been filed after the order for probate had become final, the document was ineffective, and the court had no jurisdiction to entertain it. (Id. at pp. 797-799.) Estate of Sanders (1985) 40 Cal.3d 607 holds that a final order for probate may be set aside for extrinsic fraud. It does not involve a petition to probate a will that was not the subject of the original order for probate. (Id. at pp. 610-613, 613-614.) Estate of Madsen (1939) 31 Cal.App.2d 240 is to the same effect, and also does not involve a petition to probate a will that was not the subject of the original order for probate. (Id. at pp. 241-242, 244.) Similarly, State v. McGlynn (1862) 20 Cal. 233, involves the time limits for the state to contest an order for probate of a will in escheat proceedings; it does not involve a petition to probate a different will.

Substantial Evidence Supports the Courts Finding That Ronalds Petition Was Timely

Contestants contend that the trial court erred in basing its conclusion that Ronalds petition was timely on the fact that Larrys petition was not personally served on Ronald. They contend that the 60-day period within which Ronald had to file his petition for probate began to run in February 2004, when notice of Larrys petition for probate was published. Even if publication of the notice of Larrys petition was sufficient to put Ronald on notice of the proceedings, however, the mere fact of publication did not trigger the 60-day time limit for Ronald to file his own petition for probate. Rather, the 60-day period begins to run when the proponent first obtains knowledge of the will. ( 8226(c)(2).) By its plain language, the statute requires actual knowledge of the will, not just constructive notice.^[10] Because the language is unambiguous, we need not examine the statute further to ascertain the Legislatures intent. (People v. Jones, supra, 5 Cal.4th at p. 1146.) Thus, we must affirm the courts determination that Ronald filed his petition within 60 days after he obtained knowledge of the will if the factual findings underlying that conclusion are supported by substantial evidence. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.)

Under the substantial evidence rule, we view the evidence in the light most favorable to the prevailing party, resolving all conflicts and drawing all reasonable inferences from the evidence to support the judgment. (Bickel v. City of Piedmont, supra, 16 Cal.4th at p. 1053.) Here, there was no evidence that Ronald had actual knowledge of his brothers will before August 11, 2005. It was undisputed that Larrys petition and all documents pertaining to it were mailed to Ronald at an address in Oklahoma that was neither Ronalds residence nor an address to which Ronald had authorized Larry to mail documents. Ronald testified that although his son told him of his brothers death and he had received some letters from his mother after his brothers death, neither of them told him about his brothers will. He testified that he did not learn of his brothers will until attorney Mary Casserly brought him a copy of the will on August 11, 2005. The court found Ronalds testimony credible. The testimony of a witness, whom the trier of fact finds credible, constitutes substantial evidence. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Thus, the courts finding that Ronald first learned of the wills existence on August 11, 2005, is supported by substantial evidence. Contestants do not dispute that the petition was filed within 60 days after that date, as found by the trial court. (See fn. 5, ante.) We therefore affirm the courts finding that Ronalds petition was timely.

DISPOSITION

 The order filed June 1, 2005, denying Larry Mauzeys petition for probate, is affirmed. The order filed June 15, 2006, granting Ronald Mauzeys petition for probate, is also affirmed.

 The parties are to bear their own costs on appeal in case Nos. E038344 and E041215. 

 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ Richli

J.

/s/ King

J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1]All statutory citations refer to the Probate Code unless otherwise indicated; section 8226, subdivision (c) is hereafter cited as section 8226(c). The provisions of section 8226(c) are discussed below.

^[2]Because all of the players in this case share the same last name, we will sometimes refer to them by their first names. No disrespect is intended.

^[3]Wayne Mauzey was deceased by the time of these proceedings.

^[4]The trial court found that the petition was filed on October 6, 2005. The register of actions appears to indicate as well that the petition was filed on October 6, 2005.

Contestants state that the petition was filed October 10, 2005. However, the copy of the petition they included in their appendix is not file-stamped, and they do not cite to any evidence in the record which supports this statement. In any event, they do not contend that the petition was not timely because it was filed on October 10 rather than on October 6, 2005, as found by the trial court.

^[5]Although Ruth also asserts that she did not receive notice, she acknowledges that Larry, not she, was the proponent of the will. However, she bases her argument exclusively on the lack of notice to Larry, apparently recognizing that because section 8226(c) speaks of receipt of notice by the proponent of the will, lack of notice to Ruth is irrelevant.

We note also that even though Ruth is not the proponent of the will, as a beneficiary of the will who appeared and participated in the proceedings below, she has standing to appeal. (In re Estate of Zabriskie (1979) 96 Cal.App.3d 571, 575.) Contestants do not contend otherwise.

^[6]Only the decedents heirs must be served with a notice of a petition to administer an intestate estate. ( 8110, subd. (a).) A decedents sibling is not an heir, if the decedent has surviving issue. ( 6402, subds. (b), (c).)

^[7]The 120-day period provided for in section 8226(c)(1) had elapsed in June 2003, before Larry learned of the will.

^[8]The parties expend a fair amount of energy arguing whether Ronald Mauzey or his son, Ronald Mauzey II, is the intended beneficiary. Ronald testified that Ronald Keith Mauzey II is his sons legal name. The trial court declined to decide that issue, but noted that the will names Ronald Keith Mauzey, not Ronald Keith Mauzey II and that Ronald Mauzey II had filed no papers in the probate matter at any time. In absence of any factual finding to the contrary, we must presume for purposes of this appeal that the father, Ronald Mauzey, is the beneficiary named in the will.

^[9]Contestants refer to our tentative opinion in case No. E038344 a number of times in their opening brief and contend that we also made findings that would preclude Ronalds petition for probate. Contestants attempt to rely on the tentative opinion is misguided, for a number of reasons. First, because no issue pertaining to Ronald was before us in case No. E038344, we made no determinations concerning his receipt of notice of the probate proceedings or his knowledge of the will. Second, even if we had made any such determinations, a tentative opinion is, as the name indicates, tentative. It is not a final opinion and thus has no res judicata or law of the case effect. Third, we withdrew the tentative opinion when we granted the motion to consolidate the two appeals. The tentative opinion has thus, in the words of John Cleese, ceased to be. (See Wikipedia, The Free Encyclopedia

_Circus/Dead_Parrot> [as of July 12, 2007].)

^[10]Because we determine that Ronalds petition was timely, even if we assume that he received legally sufficient notice of the probate proceedings, we need not address his contentions that he did not receive legally sufficient notice of either the original petition filed by Kelly or the subsequent petition filed by Larry.