Estate of Yokaitis
Filed 12/10/12
Estate of Yokaitis CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
Estate of MARILYN HUSTEDT YOKAITIS,
Deceased.
HEIDI HUSTEDT MORANDINI,
Defendant
and Respondent,
v.
STANLEY SNIFF as Riverside County Public Administrator,
Claimant
and Appellant.
E054809
(Super.Ct.No.
INP021210)
OPINION
APPEAL from the Superior Court of
County. Harold W. Hopp,
Judge. Affirmed.
Law Office of Toni Eggebraaten and
Toni Eggebraaten for Claimant and Appellant.
Nethery & Ofseyer, D. Martin
Nethery and Jeremy J. Ofseyer for Defendant and Respondent.
I
INTRODUCTION
The probate court
appointed petitioner and appellant Stanley Sniff, the Riverside County Public
Administrator, as the special administrator for the estate of the decedent,
Marilyn Yokaitis. (§ 8540 et seq.) Objector and respondent, Heidi Morandini
(Morandini), is the surviving adult daughter of decedent and the residuary
beneficiary of the bulk of the estate.
Donald Yokaitis (Donald) is decedent’s surviving spouse.
The issue on
appeal is whether the Public Administrator is entitled, under section 7621,
subdivision (d), to be paid a statutory bond fee of about $265,000 in lieu of
payment of a bond premium (in-lieu bond fee).
Morandini opposes payment of the fee on the grounds the Public
Administrator did not have to post a statutory bond under section 8542 and also
waived any bond fee.
After
reviewing supplemental briefing regarding the applicability of section 8542, we
have concluded that, when the Public Administrator was appointed as a special
administrator in this case, it was not required to post a bond. We agree with the probate court’s finding
that the parties waived any bond fee that may have been required under section
7621. We affirm the judgment.
II
FACTUAL AND
PROCEDURAL HISTORY
name="_ftnref3" title="">[3]
A. Letters of Administration
The decedent had
substantial separate property assets, including stocks, bonds and commercial
real property. At the time of the
decedent’s death in March 2007, her estate was estimated to be more than $23
million, and to generate at least $1 million in income annually.
Donald,
decedent’s husband, produced a 1992 holographic will. Morandini, decedent’s daughter, produced a
2006 holographic will. A will contest
ensued.
As part of the
estate’s administration, Morandini requested a bond be fixed at
$3,595,000. Donald requested that no
bond be required.
In June 2007,
Donald filed a subsequent petition for letters of special administration,
asking to be appointed as a special administrator because of his specialized
knowledge and expertise concerning property management and the assets of the
estate and requesting that no bond be required.
Morandini also applied to be appointed as a special administrator or for
the appointment of Bank of America as a special administrator with general
powers.
B. Appointment of Special Administrator
At a hearing in
July 2007, the probate court announced it could not appoint a special
administrator with general powers because of lack of notice but it could make
an appointment with special powers.
Donald’s attorney proposed the appointment of the Public Administrator,
to serve without a bond.
Morandini’s
attorney, D. Martin Nethery, objected to the appointment of the Public
Administrator, a government agency, instead of Bank of America, because the
complex estate required “sophisticated hands-on management†and immediate
action. Nethery argued that the Public
Administrator was understaffed and overworked, making it difficult to
communicate with its employees.
Furthermore, if Bank of America was appointed, a bond would not be
required.
The court and the
attorneys discussed that the Bank of America or the Public Administrator would
be entitled to statutory fees, as well as extraordinary fees, for their
services but that neither appointee would need to post a bond.
After the matter
was submitted, the court denied Morandini’s petition and granted Donald’s
petition, appointing the Public Administrator to act as a special
administrator, without a bond, with enumerated special powers, including the
powers set forth in section 8544, and the powers to inventory and sell assets,
to manage tax obligations, and to enter into contracts.
C. Order for General Powers
In
September 2007, the Public Administrator filed a petition requesting the court
grant it general powers to allow it to borrow money and to pay taxes of $8
million to $10 million. Morandini
consented because of the need to pay taxes.
Donald strenuously opposed granting general powers to the Public
Administrator. In October and November
2007, the court granted the petition, appointing the Public Administrator as a
special administrator with general powers and ordering a “Bond is not
required.â€
D. The First Accounting
In
the first accounting filed in June 2009, the Public Administrator represented
that Donald was continuing to act as property manager for the estate, for which
he was compensated. The estate tax
return had been filed and partial tax payments had been made. The value of the estate was about $24.5
million. There was ongoing litigation
between the parties. The Public
Administrator’s attorney, Stephen A. Sidoni, asked to be paid for extraordinary
services in the amount of $64,590. The
Public Administrator sought payment of $262,440.96 as statutory
compensation. The Public Administrator
also requested an in-lieu bond fee of $162,985.87.
Morandini
filed a number of objections, including to the statutory fees and extraordinary
services, but did not expressly object to the in-lieu bond fee. Donald also filed objections, including to
the in-lieu bond fee. The Public
Administrator defended its claim for statutory fees and extraordinary services
without mentioning the in-lieu bond fee.
In a subsequent response, Morandini states: “The administrator also includes his bond
fee, which although an annual charge against the estate, is not required by statute to be paid annually. Indeed, given the income generated by this
estate, this fee could be paid in quarterly installments by mid-late 2010.â€
E. Petition for Settlement of the Estate
The parties
settled their will contest and sought the court’s approval in June 2010. In her petition for approval of the
settlement agreement, Morandini acknowledged that the unpaid debts of the
estate included “[a] portion of the statutory fees and commissions, any
extraordinary fees and commissions, and a public administrator bond, as may be
awarded to the Special Administrator and/or his counsel.†Morandini proposed selling an estate
asset–expected to net $731,000–to pay any amounts owed, including the statutory
bond fee.
F. Morandini’s Objections to the In-Lieu Bond
Fee
At
the hearing on July 23, 2010, Morandini
raised objections to the payment of the in-lieu bond fee, arguing that the
Public Administrator had waived the fee.
The Public Administrator argued that the bond fee was mandatory and
required to defray the county’s costs of self-insuring.
Morandini
then filed written objections, again arguing that the Public Administrator had
waived any right to a bond fee and that a bond fee was an unnecessary expense
under section 11004. Morandini reviewed
the procedural history of the case and identified the points at which the
parties and the court had discussed how the Public Administrator, as a governmental
entity, was exempt from bond requirements.
Morandini noted the Public Administrator had not requested a bond fee
until June 2009, plus statutory fees of about $262,000 and additional fees for
extraordinary services.
The Public
Administrator responded by seeking statutory fees of about $218,000, a bond fee
of about $265,000, and extraordinary fees of about $107,000. The Public Administrator disagreed that the
bond fee could have been waived because it is mandated by statute and a bond or
a program of self-insurance is required under Government Code section 24150 or
section 24156. The Public Administrator
claimed a bond fee is a necessary expense under section 11004.
After oral
argument, the probate court
name="_ftnref4" title="">[4] issued a written ruling, making detailed
factual findings:
“Heidi Morandini
objected to the payment of any bond fee, contending that it is an unnecessary
expense under . . . section 11004 and the public administrator has waived the
fee, because at the outset of this proceeding, the public administrator
represented that there would be no bond fee if the public administrator were
appointed, in contrast to the appointment of Bank of America, a licensed trust
company that would not be required to post a bond, as requested by Morandini.
“The transcript
of the hearing on July 3, 2007 makes it clear that counsel for the public
administrator [Stephen Sindoni] did state that no bond fee would be required if
the public administrator were appointed.
After a discussion concerning the size of the bond, in which the Court
stated that if the Court ‘went to a third party institution, such as Bank of
America, there’s no bond required,’ the following colloquy occurred:
“The Court: The Public Administrator [would] be willing
to do this, Mr. Sindoni, based on the fact that you wouldn’t have general
powers, you would just have these special powers, at least at this time?
“Mr.
Sindoni: Yes, Your Honor.
“The Court: Okay.
Is that correct: do you all agree
the Public Administrator can serve without bond?
“Mr.
Sindoni: I—I agree. That’s—that’s—that’s in the Code. [¶] . . . [¶]
“Further,
when the Court questioned Mr. Sindoni about how the public administrator would
be compensated, there was no mention of a bond fee. [¶] . . . [¶]
“The Court finds
that, although the misrepresentation may have been inadvertent, counsel for the
public administrator caused the Court to understand that no bond fee would be
required if the public administrator were appointed and that this
misunderstanding was a significant factor in the appointment of the public
administrator. It seems clear that the
cost of the bond was something that Judge Fry considered important in deciding
whether to appoint the public administrator rather than a licensed trust
company, such as Bank of America. The Court
further finds that this fee may be waived by the public administrator or,
alternatively, that the public administrator may be estopped from seeking or
taking the fee, if, as here, it has implicitly represented that it will not be
paid the fee. [¶] Therefore, the objection to the bond fee is
sustained.â€
The court awarded the Public Administrator
statutory fees of about $211,000. The
court also awarded extraordinary fees of $6,600.
III
STANDARD OF
REVIEW
The
Public Administrator argues the standard of review is de novo because the facts
are undisputed and the issue is a question of law. Morandini agrees the doctrines of waiver and
estoppel involve legal issues subject to de novo review but asserts the factual
findings by the trial court are subject to a substantial evidence standard of
review. (St. Agnes Medical Center v. PacifiCare of California (2003) 31
Cal.4th 1187, 1196; Blix Street Records,
Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 46.) We apply Morandini’s articulation of the
standards of review in the following analysis.
IV
SECTIONS 7621 AND
8542
In
the probate court, Morandini and Donald argued about whether the Bank of
America or the Public Administrator should be appointed as the personal
representative or the special administrator of the estate. The parties generally agreed that neither the
Bank nor the Public Administrator would have to post a bond. Had the Bank of America been appointed, it
would not have been able to charge a bond fee as an additional expense to the
estate. However, unlike the situation
with the Bank of America, two statutes of the Probate Code deal with the bond
and the bond fee for a public administrator.
Section 7620 et
seq. contains the general provisions for the appointment of the public
administrator as a personal representative of an estate. Section 7621, subdivision (d), allows a
public administrator acting as a personal representative to charge the estate a
bond fee:
“The public
administrator’s oath and official bond are in lieu of the personal
representative’s oath and bond. Every
estate administered under this chapter shall be charged an annual bond fee in
the amount of twenty-five dollars ($25) plus one-fourth of one percent of the
amount of an estate greater than ten thousand dollars ($10,000). The amount charged is an expense of
administration and that amount shall be deposited in the county treasury.†(§ 7621, subd. (d).)
A more specific
statute applies when the probate court appoints a public administrator as a
special administrator. The probate
statutes which apply to the appointment of a special administrator are found at
section 8540 et seq. In particular,
section 8542 provides that a public administrator acting as a special
administrator does not have to post a bond:
“(a) The clerk
shall issue letters to the special administrator after both of the following
conditions are satisfied:
“(1) The special
administrator gives any bond that may be required by the court under Section
8480.
“(2) The special
administrator takes the usual oath attached to or endorsed on the letters.
“(b)
administrator. [Emphasis added.]â€
Thus, section 8542 plainly exempts a public
administrator appointed as a special administrator from posting a bond although
it does not expressly mention a bond fee.
The record establishes that the probate court
first appointed the Public Administrator as a special administrator, with
enumerated special powers, and with no bond.
Later, the court appointed the Public Administrator as a special administrator
with general powers, again with no bond.
The Public Administrator was never required to post a bond by court
order.
Nevertheless, the
Public Administrator contends that, although no bond was required, it is still
entitled to receive an in-lieu fee as compensation for what it variously
describes as its “official bond,†its “official oath,†or for its “statutorily
mandated liability coverage.†In oral
argument, counsel for the county explained that the in-lieu fee compensates the
county for the benefit provided to private parties, i.e., the estate
beneficiaries, for the security of having services provided by the Public
Administrator. The Public Administrator
relies on the language of section 7621, subdivision (d), stating: “The public administrator’s oath and official
bond are in lieu of the personal representative’s oath and bond.†In other words, the Public Administrator is
entitled to a bond fee because its official bond is a substitute for the bond
usually required from a personal representative.
The appellate
record in this case offers no evidence of any official bond, insurance policy,
or other liability coverage obtained by the county, or any cost of
self-insurance borne by the county—the expense of which might justify imposing
a bond fee on the subject estate. Even
assuming the county’s official duty has been regularly performed (Evid. Code, §
664), it is not wholly clear, as argued by Morandini, that the bond fee
required under section 7620, subdivision (d), is required where a public
administrator has been appointed as a special administrator under section
8542. If there is no requirement for a
bond—or some equivalent—there may be no requirement for a bond fee for a public
administrator acting as a special administrator.
Under different
factual circumstances, however, we might have agreed the Public Administrator
was entitled to charge a bond fee under section 7621. Nevertheless, we do not need to resolve this
issue because, as discussed below, we ultimately conclude that the trial court’s
findings that the Public Administrator waived any bond fee are amply supported
by the record.
V
THE PUBLIC
ADMINSTRATOR WAIVED THE BOND FEE
In
affirming the probate court, we find the record offers substantial evidence to
support the probate court’s factual findings that the Public Administrator
waived any claim for a statutory bond fee.
(St. Agnes Medical Center v.
PacifiCare of California, supra, 31 Cal.4th at p. 1196;
191 Cal.App.4th at p. 46.) Because the
record demonstrates the existence of a waiver, the present case does not
involve the separate question of the trial court’s discretion to reduce the
amount of a bond fee. (
Cal.App.4th 414, 419-420.)
The
Public Administrator, as a governmental entity, may waive a statutory
right: “Waiver occurs where there is an
existing right; actual or constructive knowledge of its existence; and either
an actual intention to relinquish it, or conduct so inconsistent with an intent
to enforce the right as to induce a reasonable belief that it has been waived.
. . . The doctrine of waiver applies to
rights and privileges afforded by statute.â€
(Carmel Valley Fire Protection
Dist. v. State of California (1987) 190 Cal.App.3d 521, 534.) Statutory rights may be waived unless waiver
is expressly prohibited. (
Cal.4th 1040, 1049, fn. 4.) The
requirement of a bond is subject to waiver.
(Smith v. Adventist Health
System/West (2010) 182 Cal.App.4th 729, 740-744.) It has not been established on this record
how waiver in this case would seriously compromise any public purpose because
there is no concrete showing how the county would be harmed by waiver. (Azteca
Construction, Inc. v. ADR Consulting, Inc. (2004) 121 Cal.App.4th 1156,
1166.)
According to the
record, the issue of the bond and the bond fee was raised repeatedly throughout
the proceedings over a three-year period.
When the Public Administrator was appointed in July 2007 and afterwards,
the probate court and the parties discussed or mentioned the bond and bond fee
more than a dozen times. Morandini and
Donald both consistently opposed the estate being liable for the expense of a
bond. In appointing the Public
Administrator as a special administrator, the probate court was primarily
concerned about charging the estate with the cost of a bond. Furthermore, if the Bank of America had been
appointed, as requested by Morandini, it could not have claimed a bond fee. The record indicates the probate court would
have appointed Bank of America as a special administrator had it known the
Public Administrator would claim a bond fee of $265,000. When, as part of the usual course in probate
proceedings, the Public Administrator asked for a bond fee as part of its first
accounting in June 2009, the parties objected to the bond fee at the first
opportunity.
After a thorough
review of the matter’s history, the probate court finally concluded the Public
Administrator had waived the bond fee, either intentionally or by implied
conduct. (Smith v. Adventist Health System/West, supra, 182 Cal.App.4th at p.
746; Salton Community Services Dist. v.
Southard (1967) 256 Cal.App.2d 526, 532-533.) Substantial evidence supports the probate
court’s finding the Public Administrator waived the bond fee.
When the Public
Administrator claimed the bond fee in June 2009, it had already been waived at
the time of the appointment in July 2007.
Under the particular facts of this case, waiver was established and the
probate court acted within its equitable powers by denying the bond fee to the
county.
VI
DISPOSITION
The
Public Administrator and its lawyer were compensated in the amount of $218,000
for administration of the subject estate.
The Public Administrator waived any right to charge a bond fee.
We
affirm the judgment and order the parties to bear their own
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We
concur:
RAMIREZ
P. J.
RICHLI
J.
All statutory references are to the Probate Code unless stated
otherwise.
We deny the motion to take judicial notice filed February 1, 2012,
because the legislative history is not relevant to the material issue in the
case. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4.)
