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Kadre v. White

Kadre v. White
27/11/08



Kadre v. White



Filed 10/23/08 Kadre v. White CA2/3















NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



MAITREYA MUMANIE KADRE,



Plaintiff and Appellant,



v.



THOMAS A WHITE et al.,



Defendants and Respondents.



B202731



(Los Angeles County



Super. Ct. No. BP098576)



Appeal from an order of the Superior Court of Los Angeles County, Reva Goetz, Judge. Affirmed.



ODonnell & Associates and Pierce ODonnell for Plaintiff and Appellant.



Anker, Reed, Hymes & Schreiber and Martin S. Reed for Defendant and Respondent Alp Tolum; Snyder and Hancock and Scott A. Hancock for Defendant and Respondent Thomas A. White.



_______________________________________



Maitreya Mumanie Kadre (appellant) has filed an appeal challenging an order of the probate court that denied her second petition to have admitted to probate what she asserts is a holographic will of decedent Gregory H. Comstock, aka Gregory Colbrook (decedent). Respondents in this appeal are Alp Tolun, who is the administrator of the decedents estate (the administrator), and Thomas White, who is described in the record as a first cousin and heir of the decedent (the claimant heir).



The probate courts denial of appellants second petition to probate a will was based on statutory time parameters for filing such petitions. Those time limitations are found in Probate Code section 8226.[1] Like the trial court, we find that the provisions in section 8226 make the petition to probate a will untimely. We will therefore affirm the trial courts order.



BACKGROUND OF THE CASE



The decedent died on April 13, 2006. On May 24, 2006, the administrator filed a petition seeking letters of administration and asserting the decedent died intestate. On July 20, 2006, appellant filed her first petition for probate of a hand written document, which she asserted in the petition to be a will, and for testamentary letters as executor of the will.[2] Appellants notice of a hearing on her petition was served on the administrator and his attorney. The hearings on the administrators and appellants petitions were consolidated and set for August 15, 2006.



On August 7, 2006, the administrator filed an objection to appellants first petition for probate of a will in which he asserted that the claimed holographic will was really just a power of attorney given to appellant by the decedent for the purpose of securing a commission for the administrator with respect to an agreement between the administrator and the decedent that the administrator would assist decedent in authenticating and marketing a painting which might have been painted by Jackson Pollock.



The August 15, 2006 hearing on the administrators and appellants petitions was eventually held on December 12, 2006. By minute order the court granted the administrators petition for letters of administration. The court also placed off calendar appellants first petition to probate a will when no one appeared on behalf of appellant on that petition, and placed off calendar the administrators objections/contest of appellants petition.[3] On January 8, 2007, the court issued an order appointing the administrator to that position as the decedents representative in the probate case. The order states the decedent died intestate.



On June 19, 2007, appellant filed another petition for probate of a holographic will (the same writing on which her first petition was based), and testamentary letters. She had secured a new attorney by that time. A hearing on this second petition for probate of a will was set for July 25, 2007. Objections to appellants second petition were filed by the administrator and the claimant heir. The objections were based on section 8226. A hearing on appellants second petition for probate of a will, and on the objections to that second petition, was held on July 25, 2007. On August 6, 2007, the court issued a minute order in which it (1) denied with prejudice appellants second petition, finding that the petition untimely; and (2) granted the objections to that petition filed by the administrator and the claimant heir. Plaintiff filed a timely appeal from that order.[4]



DISCUSSION



1. Standard of Review



If a statute needs interpretation, it is a question of law to be decided de novo by the reviewing court. (R & P Capital Resources, Inc. v. California State Lottery (1995) 31 Cal.App.4th 1033, 1036.) When the relevant facts of a case are not disputed, the application of the relevant law to those facts also receives a de novo review. (International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611.)



2. Appellants Second Petition Was Not Timely



There can be no doubt that appellants second petition for probate of a will was properly denied as untimely. Under section 8226 (see fn.1, ante), the second petition could only have been timely if it was filed within the later of either of two periods of time. The first period of time is 120 days after the probate court determined the decedent to be intestate. That determination was made by minute order dated January 8, 2007, and so if the 120-day period of time applies here, appellants second petition had to be filed on or before May 8, 2007.



The second period of time is 60 days after appellant first obtained knowledge of the holographic writing. Since appellant filed her first petition for probate of a will on July 20, 2006, she obviously had knowledge of the writing at least by then. Using that date as the date on which she obtained knowledge of the writing, for purposes of the 60‑day period, appellants second petition had to be filed on or before September 18, 2006.



Since appellant had to file her second petition on or before the later of those two dates (May 8, 2007 or September 18, 2006), the second petition had to be filed on or before May 8, 2007. However, it was not filed until June 19, 2007. Therefore, it was not timely under section 8226.



3. Appellants Second Petition Was Not a Renewal/Resetting
of Her First Petition





Noting that placing a petition off calendar is not the same as considering the petition and ruling on it, nor the same as dismissing the petition, appellant contends that her second petition for probate of a will was really just a request to reset/renew her first petition that had been placed off calendar. Thus, her analysis goes, the second petition was timely under section 8226 as a reset of the first petition because the first petition was timely under that statute, and the trial court should have analyzed the timeliness issue on the basis of when plaintiffs first petition for probate of a will was filed, not her second petition. We do not agree with these contentions.



The local superior court rules provide for resetting petitions in probate court. In 2007, when appellant filed her second petition, local rule 10.15.1 (now rule 10.6) provided: A petition [] which has been placed off calendar can be reset only when there is presented at the time of the request to reset a supplement which sets forth the current status. Here, there was no specific request to reset the first petition for hearing, and there was no supplement setting forth the current status. The second petition makes no mention of it being a reset petition. Therefore, the trial court was not put on notice that appellant was requesting that her first petition be reset for hearing.



As an alternative ground for rejecting appellants position, appellant has not presented analysis that her first petition was timely under the parameters of section 8226. Under section 8226, appellant could file her petition to probate only within the later of either of the . . . time periods set out in subdivision (c) of that statute. ( 8226, subd. (c), italics added.) As noted above, the later of those two statutory time periods was 120 days after the court issued its order determining that the decedent died intestate. That order was issued on January 8, 2007, and thus the 120‑day period ran from January 8, 2007 to May 8, 2007. Yet, appellants first petition was filed on July 20, 2006. Therefore, it did not conform to the statutory language of section 8226. We view the requirements of subdivision (c) of section 8226 as designed to promote order in a probate case. Plaintiff presents no authority for the proposition that filing her first petition prematurely, that is, prior to the commencement of the later of the two time periods specified in section 8226, is permissible. However, that is a question we need not, and do not, decide in this case.



DISPOSITION



The order from which appellant has appealed is affirmed. Costs on appeal to respondents.



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



CROSKEY, J.



We Concur:



KLEIN, P. J.



ALDRICH, J.



Publication courtesy of San Diego pro bono legal advice.



Analysis and review provided by Poway Property line Lawyers.



San Diego Case Information provided by www.fearnotlaw.com







[1] Unless otherwise indicated, all references herein to statutes are to the Probate Code.



Section 8226 provides in relevant part: (c) 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.



[2] The text of the writing submitted by appellant, with her petition, as a holographic will states in part: In the event of my irreversible incapacitation, I, Gregory Colbrook hereby designate [appellant] the executor of my assets which are represented in whole by one painting by Jackson Pollock, . . ., given to me in 1950 by my grandfather John Adams Comstock. [] I authorize [appellant] to realize negotiable funds from the painting and to give 5% of the proceeds/value to [the administrator], . . ., but only if and when I am unable to act. The writing is dated March 31, 2006, and has the words Los Angeles next to the date. It bears a signature Greg Colbrook, and it has a witness signature of one person.



In her brief, appellant describes this writing as one that bequeath[es the decedents] sole asset to [a]ppellant. There is apparently disagreement as to whether this painting was actually painted by Jackson Pollock.



[3] Appellant was represented by an attorney when she filed her first petition to probate a will. However, by the time the court addressed that petition on December 12, 2006, the attorney had been substituted out. Appellant later retained new counsel.



At oral argument in this appeal, appellants new attorney repeatedly asserted that appellants failure to appear at the December 12, 2006 hearing was not the reason that appellants first petition was placed off calendar. However, the reporters transcript for that hearing shows otherwise. At the December 12, 2006 hearing, attorney Martin Reed, who represents the administrator, indicated to the court that appellants original attorney had been substituted out. Reed further indicated that although appellant had told Reeds paralegal that she (appellant) would be at the hearing and would have new counsel, she was, in fact, not at the hearing. The reporters transcript also shows that no one at the hearing indicated he or she was there to represent appellant. When the court had assured itself that there was no one at the hearing to speak on behalf of appellants first petition, the court stated: That matter is off calendar. The court indicated that the contest raised by the administrator to appellants first petition would be placed off calendar as well.



[4] Faced with the denial of her second petition to probate a will, appellant filed with the probate court an application to restore [her first] petition to probate [a] will to the courts active calendar. That application was filed on September 4, 2007. The basis of the application was appellants claim that the first petition met the timing requirements of section 8226 in that the petition was filed within 126 days after the probate court determined the decedent died intestate, or more accurately, that it was actually filed several months before the probate made that determination. Appellant reasoned that the court never ruled on the merits of her first petition to probate a will, and thus never denied it.



The application was set for hearing on October 22, 2007. The claimant heir filed an objection to the application, asserting that the denial with prejudice of appellants second petition to probate a will barred a reactivation of her first petition. On October 26, 2007, the trial court issued a minute order sustaining the objection and denying, with prejudice, appellants application to restore her first petition to probate to the active calendar. The record does not show that appellant filed an appeal from that order.





Description Maitreya Mumanie Kadre (appellant) has filed an appeal challenging an order of the probate court that denied her second petition to have admitted to probate what she asserts is a holographic will of decedent Gregory H. Comstock, aka Gregory Colbrook (decedent). Respondents in this appeal are Alp Tolun, who is the administrator of the decedents estate (the administrator), and Thomas White, who is described in the record as a first cousin and heir of the decedent (the claimant heir). The probate courts denial of appellants second petition to probate a will was based on statutory time parameters for filing such petitions. Those time limitations are found in Probate Code section 8226. Like the trial court, we find that the provisions in section 8226 make the petition to probate a will untimely. Court therefore affirm the trial courts order.


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