Filed 10/7/26 Estate of Reyes CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
Estate of JESUS A. REYES, Deceased. C100793
MARINA LUNA DE REYES, as Administrator, etc., (Super. Ct. No. 34-2015-
Petitioner and Respondent, 00175128-PR-LA-FRC)
v.
MICHAEL REYES et al.,
Objectors and Appellants.
This probate matter is in our court for a second time. In the first appeal, Michael
Reyes and Rebecca Zuniga appealed from the probate court’s order enforcing a purported
settlement with Marina Reyes under Code of Civil Procedure section 664.6. 1 This court
reversed, concluding that although the probate court had obtained Michael’s and
Rebecca’s oral consent to settlement terms on the record, it had not obtained Marina’s
oral consent to the terms. And although Rebecca had signed a written settlement
agreement, Michael and Marina did not sign the proposed written agreement, and the
proposed written agreement exceeded the scope of the purported oral agreement.
1 Undesignated statutory references are to the Code of Civil Procedure. We will refer
to the parties and other family members by their first names for clarity.
1
This court concluded there was no enforceable settlement agreement. (Reyes v. Reyes
(Aug. 20, 2021, C089180) [nonpub. opn.] (Reyes).)
Following remittitur, Marina asked the probate court for a case management
conference to reset the matter for trial. According to the minutes of the case
management conference held on December 7, 2023, the conference “was conducted
consistent with the direction from the Court of Appeal” and Marina was “voir-dired by
her counsel regarding the terms of the settlement entered into on May 23, 2018 in
Department 27.” The minutes stated that Marina’s counsel read to Marina, with the
assistance of a Spanish interpreter, “the terms of the settlement verbatim from the
May 23, 2018 transcript” and the probate court found that Marina “entered into a
knowing, intelligent and voluntary settlement.” The probate court entered an order
approving the settlement.
Michael and Rebecca appeal, arguing (1) the probate court disobeyed this court’s
holding that the settlement agreement was unenforceable; (2) their due process rights
were violated because they were not given notice that the case management conference
would involve an effort to cure the deficiency that rendered the settlement unenforceable,
i.e., the absence of Marina’s consent to the settlement terms; (3) at the time of the case
management conference, there was no pending settlement offer for Marina to accept;
and (4) the probate court mishandled certification of the settled statement on appeal.
Marina counters that Michael and Rebecca’s contentions are forfeited for failure to object
in the probate court to the voir dire procedure.
We are sympathetic to the efforts by the probate court and the parties to resolve
this matter without further litigation. The record indicates the probate court did not
believe it made sense, more than five years after the original trial had commenced, to
hold another multi-day trial to resolve a dispute over an $18,000 reimbursement and
some personal property. The record further reflects that at various times, in various
formats, and with various terms, each individual litigant indicated their desire to settle.
2
Thus, we understand the attempts at settlement. The problem has always been that the
parties never came together collectively to agree to settle at the same time, in the same
format, on the same terms, and with the same notice.
Accordingly, we will once again reverse. Although the record does not establish
that Michael and Rebecca objected in the probate court to the voir dire procedure, we will
exercise our discretion to address the merits because Michael and Rebecca’s dispositive
contentions present questions of law. Our resolution makes it unnecessary to address the
challenge to the settled statement.
Following our recitation of the background, we will begin our discussion by
addressing appealability, after which we will address forfeiture. We will then discuss
Michael and Rebecca’s remaining contentions.
BACKGROUND
In January 2015, Jesus Reyes died intestate. He left behind a wife, Marina, and at
least two children, Michael and Rebecca, from a previous marriage. Marina was
appointed the administrator of Jesus’s estate.
In September 2017, Marina filed an account and petition for final distribution of
the estate. With respect to the estate’s real property, a multiple-family dwelling located
on F Street in Sacramento, Marina requested a probate homestead set-aside for the
remainder of her life. Subject to that set-aside, Marina proposed dividing the estate
between herself (one-third) and Jesus’s children (two-thirds). In addition to Michael and
Rebecca, the account and petition listed four other children.
In November 2017, Michael and Rebecca filed objections. They each challenged
Marina’s right to a probate homestead set-aside. And among other things, Michael
challenged the existence of a parent-child relationship between his father and the four
additional children listed in the account and petition.
In May 2018, the probate court held a bench trial on the objections. Judge
Steven M. Gevercer presided over the trial. After the noon recess on the second day
3
of trial, the attorneys for each party informed the court clerk that they wanted to delay
further proceedings to discuss settlement. Informed of this development, the probate
court directed the attorneys to return to the courtroom following their discussions. Later
in the afternoon, the attorneys for each party informed the probate court that a settlement
had been reached. The probate court met with the attorneys in chambers to discuss the
terms of the settlement, and then recited its understanding of the agreement on the record:
“The resolution is that the administrator, Marina, is going to buy out Rebecca and
Michael’s interest, and she is going to do so by writing each one of them a check for
$32,500. The payment is going to be made on or before June 14th, 2018. [¶] In
exchange for that payment, both objectors, meaning Rebecca and Michael, are going to
waive all objections to the accounting, so all objections that they have filed in their
respective … objections will be waived. [¶] Rebecca and Michael are agreeing to sign
any document necessary to accomplish this resolution, including any assignment of a
beneficial interest that is required.” The proposed agreement also provided a date and
time for Michael and Rebecca to pick up certain items of personal property at the F Street
house.
The probate court then placed Rebecca and Michael under oath and received
confirmation from each of them that (a) they understood the court’s explanation of the
settlement; (b) they were represented by counsel; (c) they had the opportunity to consult
with counsel about the settlement; (d) counsel answered any questions they had; (e) they
were asking the court to enforce the settlement; and (f) they were not taking any
medications that affected their ability to think clearly. At the conclusion of the inquiry,
the probate court stated it would “retain jurisdiction under [section] 664.6 … to make
sure that this settlement agreement is fulfilled by all the parties … .” The probate court
did not conduct a colloquy with Marina similar to the colloquy it conducted with Michael
and Rebecca.
4
The following month, Rebecca signed a written settlement agreement containing
the terms described by the probate court, along with additional terms “to offer additional
protections to Marina.” (Reyes, supra, C089180.) Rebecca also signed an assignment of
interest in the estate. Michael did not sign the written agreement or assignment of
interest, and Marina did not sign the written agreement.
In December 2018, Marina filed a motion under section 664.6 to, among other
things, enforce the oral settlement, appoint the court clerk as elisor to sign the written
settlement agreement and assignment of interest on behalf of Michael, deduct attorney’s
fees and costs from the $32,500 payment to Michael, and confirm Marina’s petition
for final distribution. The probate court conducted a hearing on the motion and issued
orders (a) confirming that the settlement agreement remained in full force and effect,
(b) appointing the court clerk as elisor, (c) directing the clerk to sign the written
agreement and assignment of interest on behalf of Michael, (d) assessing fees and costs
against Michael to be deducted from his $32,500 check (resulting in about $18,000
payable to Michael), (e) modifying the settlement agreement to provide a new date by
which all personal property had to be picked up, and (f) setting a hearing date for
Marina’s petition for final distribution.
Michael and Rebecca appealed and this court reversed, explaining that to enforce
an oral settlement under section 664.6, the parties themselves, and not their attorneys,
must orally agree to the settlement. (Reyes, supra, C089180.) This court added that to
enforce a written settlement agreement, the parties must sign the agreement. (Ibid.)
Because Marina did not orally consent to the settlement, Michael and Marina did not sign
the written settlement agreement, and the proposed written settlement agreement
exceeded the terms of the proposed oral settlement agreement, this court concluded there
was no enforceable settlement agreement. (Reyes, supra, C089180.) The remittitur
issued in October 2021.
5
In October 2022, Marina requested a case management conference to reset
the matter for trial. Michael and Rebecca objected, arguing that Marina’s request
was an attempt to further delay the matter. Although they did not file their own motion
at that time, they indicated they would be seeking, among other things, a proper
accounting of estate assets and the removal of the four individuals listed as Jesus’s
additional children in the original account and petition.
In April 2023, the matter came before Judge John P. Winn. After providing a
summary of the procedural history, Marina’s counsel stated: “So at this point … we’re
without a settlement agreement. We’re without any other termination of the trial. We’re
two days into the trial, … so what we need to do is get back in front of Judge Gevercer to
conclude the trial as though no settlement agreement had ever happened.” Judge Winn
asked the parties whether they really wanted “to retry this thing,” adding: “Why aren’t
you settling? I don’t understand this at all.” Marina’s counsel responded, “all we’re
requesting is that this be put back on … calendar again.” Judge Winn noted that Judge
Gevercer was no longer assigned to the probate court. Marina’s counsel stated: “We
would only request a [case management conference] in front of him to make that decision
as to what happens because there are certain other issues … that I think we need to
address.” Michael and Rebecca, representing themselves, said they did not want a trial,
they wanted a new accounting. Judge Winn said a new accounting was not before the
probate court; he said “all I have is this motion to request case management.”
Referencing the January 2019 order that had been reversed on appeal, Judge Winn stated:
“We’re going to try a case from 2019 over an $18,000 reimbursement and some personal
property. Does that make any sense at all?” Marina’s counsel responded: “It does not
make sense to me, Your Honor.” After further discussion, Judge Winn set a date “for the
case management conference.”
Prior to the case management conference, the parties filed case management
statements indicating that each side expected a trial to follow. The matter was continued
6
to October 2023, and then to December 2023. Michael filed a brief arguing, among other
things, that the four listed individuals were not heirs. He also filed four motions seeking
their removal as heirs. Marina filed a supplemental memorandum of points and
authorities asserting that Michael and Rebecca had “repudiated” the settlement
agreement, but that this court’s reversal did not require a full retrial. Marina asked the
probate court to resume the trial that had already begun. 2 In response, Michael objected
to resuming the trial, arguing that “if this action is to move forward, a fresh trial should
be ordered.”
There was no court reporter at the case management conference held before
Judge Winn on December 7, 2023. The settled statement of what occurred at the case
management conference states: “Marina and her attorney appeared via Zoom. Marina
was voir-dired by her attorney. The attorney read the terms of the May 23, 2018
settlement verbatim to his client with the assistance of a Spanish language interpreter.
At the conclusion of the hearing, the [probate court] found that Marina entered into a
knowing, intelligent and voluntary agreement to settle the matter consistent with the
terms placed on the record at the May 2018 hearing. The [probate court] directed counsel
for Marina to prepare an order consistent with the May 23, 2018 settlement without any
additional terms. The [probate court] ordered that an amended petition for final
distribution [be] filed by February 9, 2024.” The probate court entered an order
approving the settlement agreement.
DISCUSSION
I
Although Marina does not challenge the appealability of the probate court’s order
approving the settlement agreement, “[t]he existence of an appealable judgment is a
2 Michael asked this court to take judicial notice of Marina’s supplemental memorandum
of points and authorities. We grant the request. (Evid. Code, § 452, subd. (d).)
7
jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its own
initiative whenever a doubt exists as to whether the [probate] court has entered a final
judgment or other order or judgment made appealable by … section 904.1. [Citations.]”
(Jennings v. Marralle (1994) 8 Cal.4th 121, 126-127.)
Here, as we explained in Reyes, the probate court’s order on Marina’s
section 664.6 motion to enforce the settlement agreement finally determined the rights
of the parties regarding settlement and was therefore appealable. (Reyes, supra,
C089180; Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1250-1252.) We reversed that
order. On remand, Marina did not file a new motion to enforce the settlement, as no
enforceable settlement existed. Instead, Marina asked that the matter be placed back
on calendar for a resumption of trial. But after Marina was voir-dired at the case
management conference, the probate court entered an order approving settlement.
We conclude the most recent order, like the previous one, “ ‘finally determined the
rights of the parties’ ” regarding their settlement of the case. (Critzer, at p. 1252.)
“It is the substance and effect of the adjudication, and not the form, which determine
if the order is interlocutory and nonappealable, or final and appealable. [Citation.]
If no issues in the action remain for further consideration, the decree is final and
appealable.” (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1293.) As in Critzer,
there is “nothing left for the [trial] court to do other than enforce its order.” (Critzer,
at p. 1252.)
II
We next turn to Marina’s argument that Michael and Rebecca forfeited the bulk
of their appellate contentions for failure to object to the voir dire procedure used to obtain
Marina’s oral consent to the settlement agreement.
As Marina accurately observes, the record does not contain an objection to the voir
dire procedure. There was no court reporter at the case management conference where
that voir dire took place. And the certified settled statement does not indicate that any
8
objection was made. However, Michael and Rebecca take issue with the reliability of the
settled statement. Their proposed settled statement claimed that Michael asserted an
objection “that there was no proper notice of the proceeding and … that the approach
being taken by the [probate court] was not proper for a case management conference.”
That line was omitted from the settled statement certified by the probate court. Michael
and Rebecca also challenge the probate court’s handling of their request for a settled
statement, contending that their proposed settled statement should govern over the
certified settled statement. We need not decide the challenge to the settled statement,
because even if no objection was made, we will nevertheless address the merits of their
remaining contentions.
Although an appellant generally forfeits a contention not asserted in the trial
court, this court has discretion to address such a contention on appeal notwithstanding
the forfeiture. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24.) Doing
so is particularly appropriate where, as here, only a question of law is presented on
the facts appearing in the record. (Ward v. Taggart (1959) 51 Cal.2d 736, 742; San
Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418,
436.)
Here, there is no factual dispute over what this court held in the prior appeal,
or the contents of the remittitur, or the probate court’s actions following the remittitur.
During the case management conference, Marina was voir-dired and the probate court
entered an order approving settlement. There is also no factual dispute that Michael
and Rebecca were not given notice that the case management conference might result
in the issuance of an order approving settlement. Because Michael and Rebecca’s
remaining contentions present questions of law, we will exercise our discretion to address
them.
9
III
Regarding Michael and Rebecca’s remaining contentions, they argue (1) the
probate court disobeyed this court’s holding that the settlement agreement was
unenforceable; (2) their due process rights were violated because they were not given
notice that the case management conference would involve an effort to cure the
deficiency that rendered the settlement unenforceable, i.e., the absence of Marina’s
consent to the settlement terms; and (3) at the time of the case management conference,
there was no pending settlement offer for Marina to accept.
“When there has been a decision upon appeal, the trial court is reinvested with
jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the
remittitur. The trial court is empowered to act only in accordance with the direction of
the reviewing court; action which does not conform to those directions is void.”
(Hampton v. Superior Court (1952) 38 Cal.2d 652, 655.) “An unqualified reversal by the
reviewing court presumes that the cause has been remanded for a retrial. [Citation.] The
reason for the rule is that, by a reversal, the order or judgment appealed from no longer
has any vitality or force. In effect, the order or judgment appealed from is vacated.”
(Ibid.) Moreover, such a retrial is “limited by the law of the case established on the
intervening appeal.” (Puritan Leasing Co. v. Superior Court (1977) 76 Cal.App.3d 140,
146.) Subject to exceptions not applicable here, “ ‘[t]he decision of an appellate court,
stating a rule of law necessary to the decision of the case, conclusively establishes that
rule and makes it determinative of the rights of the same parties in any subsequent
retrial. …’ [Citation.]” (Ibid.)
In Reyes, this court reversed the order enforcing the purported settlement
agreement. This court did so without providing any specific directions on remand.
(Reyes, supra, C089180.) Following the remittitur, Marina requested a case management
conference to reset the matter for trial. At the hearing on the request, Marina’s counsel
noted that the parties were “without a settlement agreement.” Given the holding in
10
Reyes, counsel’s comment was correct. The probate court nevertheless encouraged the
parties to settle, indicating its understanding that there was no enforceable settlement
agreement in place, and it set a date for a case management conference. Thereafter, the
parties submitted case management statements indicating that each side expected a trial
to follow. At the subsequent case management conference, Marina was voir-dired and
the probate court entered an order approving settlement.
Because Reyes did not articulate any specific remand directions, the probate
court’s order approving settlement did not violate a specific remand direction. The
probate court’s order also did not violate the law of the case. Reyes held that because
Marina did not orally consent to the settlement, Michael and Marina did not sign the
written settlement agreement, and the proposed written settlement agreement exceeded
the terms of the proposed oral settlement agreement, there was no enforceable settlement
agreement. (Reyes, supra, C089180.) But this court did not address whether those
deficiencies could subsequently be cured.
Nevertheless, the probate court was not authorized to approve settlement under the
circumstances that existed at the time of the case management conference. “When
matters within the purview of the Probate Code are contested, ‘[the probate court] shall
hear and determine any matter at issue and any response or objection presented, consider
evidence presented, and make appropriate orders.’ ” (Dunlap v. Mayer (2021)
63 Cal.App.5th 419, 425-426 (Dunlap), quoting Prob. Code, § 1046.) A hearing under
the Probate Code “shall be on notice unless the statute that provides for the hearing
dispenses with notice.” (Prob. Code, § 1042.)
Following this court’s decision in Reyes, contested probate matters remained for
retrial and the probate court was required to hold a hearing and consider competent
evidence on the contested issues. (Dunlap, supra, 63 Cal.App.5th at p. 427.) Of course,
the probate court was authorized to hold a case management conference prior to hearing
the contested issues. Indeed, “[i]n each case, the court must set an initial case
11
management conference to review the case” (Cal. Rules of Court, rule 3.722(a)), 3 and
“[t]he court on its own motion may order, or a party or parties may request, that an
additional case management conference be held at any time” (rule 3.723). However,
“ ‘[t]he purpose of [such a] pretrial [conference] is to expedite the proceedings and to
facilitate the correct determination of the issues.’ ” (Dunlap, supra, at p. 427.)
Specifically, at such a conference, “the court must review the case comprehensively and
decide whether to assign the case to an alternative dispute resolution process, whether to
set the case for trial, and whether to take action regarding any of the other matters
identified in rules 3.727 and 3.728” (rule 3.722(a)), including “[w]hether an early
settlement conference should be scheduled … .” (Rule 3.727(7).) Following the case
management conference, “[t]he court must enter a case management order,” which may
include an order scheduling “a mandatory settlement conference as provided in rule
3.1380.” (Rule 3.728(10).) 4 Although Michael and Rebecca were on notice that they
were appearing for a case management conference, and therefore the probate court might
order them to attend a mandatory settlement conference prior to hearing the contested
probate matters, they were not on notice that Marina would be voir-dired at the case
management conference or that the probate court would approve settlement. Doing so
effectively determined the rights of the parties with respect to the contested issues and
ended the case.
A similar situation occurred in Dunlap. There, the trial court dismissed a petition
for a trust accounting. It did so at a case management conference, without a contested
hearing and without giving notice that the conference could result in dismissal of the
petition. (Dunlap, supra, 63 Cal.App.5th at p. 425.) That action transgressed the proper
3 Undesignated rule references are to the California Rules of Court.
4 Rule 3.1380(a) provides: “On the court’s own motion or at the request of any party,
the court may set one or more mandatory settlement conferences.”
12
procedure set forth in Probate Code sections 1042 and 1046, requiring reversal. (Dunlap,
at p. 427.) As stated previously, those sections required the trial court “to hold a hearing
and consider competent evidence on the contested issue,” i.e., whether to order the
requested accounting, and also required “ ‘notice unless the statute that provides for the
hearing dispenses with notice.’ ” (Ibid.) The statutes authorizing the trial court to order
an accounting did not “dispense with notice for a hearing on a motion to dismiss,”
and “[t]here was no notice … that dismissal of the petition would be considered, much
less granted,” at the case management conference. (Ibid.) The appellate court stated:
“We note that reviewing courts are ‘increasingly wary’ of using procedural shortcuts
because they ‘circumvent procedural protections provided by the statutory motions
or by trial on the merits; they risk blindsiding the nonmoving party; and, in some
cases, they could infringe a litigant’s right to a jury trial.’ [Citation.] ‘The purpose
of the pretrial is to expedite the proceedings and to facilitate the correct determination
of the issues. The pretrial proceeding should not become a trap for the unwary.’
[Citation.]” (Ibid.; see also Lee v. An (2008) 168 Cal.App.4th 558, 564-565 (Lee)
[trial court exceeded its authority under the relevant statutes and rules of court
by imposing terminating sanctions for failure to appear at a case management
conference].)
In this direct appeal, our conclusion that the probate court’s procedure was not
authorized by the relevant statutes and rules of court is sufficient to reverse the order
approving the settlement. (See Dunlap, supra, 63 Cal.App.5th at p. 427 [failure to follow
proper procedure set forth in the Probate Code was reversible abuse of discretion];
Lee, supra, 168 Cal.App.4th at p. 564 [where the trial court exceeds its authority under
the relevant statutes and rules of court, the resulting action is not void, but voidable on
direct appeal].) We therefore need not address Michael and Rebecca’s claim that the lack
of notice also violated their right to due process.
13
However, for purposes of providing guidance on remand, we do address Michael
and Rebecca’s third claim, that their May 2018 oral consent to the terms of the prior
settlement agreement did not constitute an open offer to settle the case, such that Marina
could have validly accepted that offer during the case management conference. We
agree. As we explained in Reyes, unlike Michael and Rebecca, Marina did not consent
to the terms of the settlement, resulting in no enforceable agreement. Although Michael
and Rebecca’s consent to those terms constituted an offer to settle, which Marina could
have accepted by her own consent within a reasonable period of time, she did not do so
until the case management conference following our remand of the case, more than five
years later. “A proposal is revoked by any of the following: [¶] … [¶] … the lapse
of a reasonable time without communication of the acceptance.” (Civ. Code, § 1587,
subd. (b).) More than five years “ ‘must be held, as a matter of law, to be an
unreasonable time.’ ” (Standard Box Co. v. Mutual Biscuit Co. (1909) 10 Cal.App. 746,
750.) Moreover, in the meantime, Michael and Rebecca have unambiguously repudiated
their consent to the terms of settlement. (See Civ. Code, § 1587, subd. (a).) Thus, the
record contains no open offer to settle the case.
On remand, the probate court must “hold a hearing and consider competent
evidence on the contested issue[s].” (Dunlap, supra, 63 Cal.App.5th at p. 427.) Prior
to doing so, following a case management conference, the probate court may order
“a mandatory settlement conference as provided in rule 3.1380.” (Rule 3.728(10).) The
parties certainly remain free to settle the matter, at a mandatory settlement conference or
otherwise, and such a resolution is encouraged. But any such settlement agreement must
comply with applicable law. The probate court may not simply approve or ratify a prior
unenforceable purported agreement.
14
DISPOSITION
The order approving settlement is reversed and the matter is remanded for further
proceedings consistent with this opinion. Appellants are entitled to costs on appeal.
(Cal. Rules of Court, rule 8.278(a).)
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
FEINBERG, J.
15