Opinion
B288656
01-22-2020
Estate of SELMA V. SIMON, Deceased. LEONARD I. ANEBERE, Appellant, v. GREGORY JONES, Respondent.
Frances L. Diaz; Leonard I. Anebere, in pro. per., for Appellant. Spierer, Woodward, Corbalis & Goldberg, Stephen B. Goldberg for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BP163039) APPEAL from a judgment of the Superior Court of Los Angeles County, Maria E. Stratton, Judge. Affirmed. Frances L. Diaz; Leonard I. Anebere, in pro. per., for Appellant. Spierer, Woodward, Corbalis & Goldberg, Stephen B. Goldberg for Respondent.
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In proceedings involving the Estate of Selma V. Simon, Leonard I. Anebere petitioned to admit to probate a holographic will purportedly executed by nonagenarian Simon approximately eight months before her death. The probate court denied Anebere's petition with prejudice as a terminating sanction for his repeated failure to comply with the Los Angeles Superior Court's local rules ("Local Rules") requiring him to clear the court's probate notes prior to a hearing on the petition. The court ruled Anebere's failure to clear the notes, despite multiple continuances to allow him to do so, justified the terminating sanction. Anabere contends the court abused its discretion in denying his petition without reaching the merits. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Anebere's Initial Petition To Admit a Holographic Will to Probate
In 2006 Simon created the Selma V. Simon Living Trust, naming herself the trustee and Gregory Jones both the successor trustee and a trust beneficiary after her death. Several charities were also named as beneficiaries of the trust. At the same time Simon executed a pour-over will, bequeathing all personal and real property in her estate to Jones in his capacity as trustee of her living trust. Both the trust and pour-over will were prepared by Simon's legal counsel. Assisted by the same lawyer, Simon amended her trust in 2010 to make Jones the sole trust beneficiary. Simon died in October 2013 at the age of 97.
Anebere was Simon's neighbor and friend. According to Anebere, in February 2013 Simon prepared a handwritten testamentary document making him the sole beneficiary of her estate. In May 2015 Anebere, then represented by counsel, petitioned the court to admit the purported holographic will into probate. (L.A.S.C. No. BP163039, the first action.) In June 2015 Jones filed his own petition under the same case number contesting the validity of the holographic will and seeking to administer the pour-over will Simon had prepared in conjunction with her living trust.
In August 2015 Anebere began representing himself in the first action. He continued as a self-represented litigant throughout the proceedings. A procedural morass followed.
2. Anebere's Attempt To Dismiss His Petition and File a New Action To Admit the Holographic Will
On October 4, 2016 Anebere filed a request for dismissal without prejudice of the first action using mandatory Judicial Council form CIV-110. The clerk of the court rejected the request as facially incomplete.
On October 10, 2016 Jones filed a motion to dismiss Anebere's petition in the first action. The same day Anebere filed a new petition under a new case number (L.A.S.C. No. 16STPB04846) (the second action) alleging the identical facts and seeking the same relief as his petition in the first action. The new case was assigned to then-Los Angeles Superior Court Judge Maria Stratton, the same bench officer who presided over both the first action and Anebere's related petition in L.A.S.C. No. BP165096 (the undue influence action).
In July 2015 Anebere filed a separate undue influence action seeking to invalidate Simon's trust. The probate court sustained Jones's demurrer to that petition without leave to amend, dismissed Anebere's undue influence action for lack of standing and entered judgment. We reversed. (Anebere v. Jones (Mar. 28, 2018, B275809) [nonpub. opn.].) Although we held the probate court had properly sustained the demurrer to the complaint as pleaded, Anebere had alleged on appeal sufficient facts—the validity of the holographic will naming him as sole beneficiary of any part of the estate that had not poured over into the trust—to confer standing if found true. We remanded the matter with directions to the court to afford Anebere one final opportunity to amend his petition in the undue influence action. We also suggested the trial court hold that action in abeyance pending the finality of the ruling on the validity of the holographic will. That undue influence action is not at issue in this appeal.
On October 11, 2016 Anebere filed a peremptory challenge to Judge Stratton in the second action pursuant to Code of Civil Procedure section 170.6. Judge David Cowan granted the section 170.6 motion, and the second action was assigned to Judge Clifford L. Klein with a next-scheduled hearing date of November 10, 2016.
On October 14, 2016 Anebere filed a new request to dismiss the first action without prejudice. On October 19, 2016 the clerk of the superior court entered the dismissal of that action as requested.
On October 28, 2016 Anebere filed his opposition to Jones's motion to dismiss Anebere's petition in the first action to admit the holographic will to probate. Anebere did not mention in his opposition papers that the first action had been dismissed at his request.
On November 10, 2016 Anebere appeared before Judge Klein in the second action. Anebere was the only party present at that hearing. Judge Klein asked Anebere whether he had cleared the probate court's notes in this new action—seven separate items identified in the court's November 2016 minute order. Anebere explained he had not had the time to clear them. The court continued the matter.
The court's probate notes from November 4, 2016 state, "MATTERS TO BE CLEARED [¶] A. What is the relationship if any between C[h]eryle Townsent and decedent? supp reqd [¶] B. Proof of holographic will on mandatory JC form required to admit holographic will [¶] C. No pub (LA) [¶] D. No declaration [r]e: whether estate is solvent, whether decd has any unsecured debt; required by LASC Rule 4.41(c) when seeking insufficient bond [¶] E. petnr is not named as executor in holo will as alleged; petnr may only be appointed administrator with will annexed if will is admitted [¶] F. Item 6 is not completed re: decedent's living relatives; supp reqd [¶] G. Why was this petition filed under a new case number? There is an open decedent's estate proceeding for this decedent under BP163039; supp reqd[.]"
On November 15, 2016 the parties appeared at the scheduled hearing on Jones's motion to dismiss Anebere's petition in the first action, and the court learned the history of Anebere's two identical actions. After much colloquy the court (Judge Daniel S. Murphy) ruled Anebere's requested dismissal of the first action (L.A.S.C. No. BP163039) had been improperly entered: Because Jones's will contest had made him a petitioner in that action, Anebere could not voluntarily dismiss the entire action. The court consolidated the two cases under the case number assigned to the first action and deemed Anebere's new petition in the second action an amended petition in the first action. The court also informed the parties that earlier that morning, based on the information that had come to light about Anebere's two identical petitions, Judge Cowan had reconsidered and vacated his earlier ruling granting Anebere's peremptory challenge to Judge Stratton in the second action, and entered a new order denying the motion and transferring that matter (now consolidated with the first action under L.A.S.C. No. BP163039) back to Judge Stratton. The court (Judge Murphy) continued the matter to January 19, 2017.
3. The Court's Multiple Orders To Clear the Probate
On January 19, 2017 the court (Judge Stratton) denied Jones's motion to dismiss Anebere's amended petition to probate the holographic will and reminded Anebere to clear the probate notes. Anebere assured the court he would clear the notes by the next hearing date, scheduled for July 12, 2017.
On July 12, 2017 Anebere appeared and requested a continuance of the trial setting conference, explaining he would be travelling overseas for the next few months. The court continued the matter to November 15, 2017 for a trial setting conference. Anebere had not cleared the probate notes by the time of the July 12, 2017 hearing, but neither the parties nor the court addressed that failure during the hearing.
On November 1, 2017 the court identified the same seven items to be cleared prior to the November 15, 2017 hearing as had been originally identified in November 2016 after Anebere had filed his amended petition. In particular, note C in the court's November 1, 2017 probate notes advised Anebere of the need to publish notice of the amended petition. Anebere appeared at the November 15, 2017 hearing and informed the court he had just returned from Nigeria and had not had the time to clear the notes. He once again assured the court he would "speed it up" and clear the notes "within the next two weeks." The court continued the matter for two months, to January 17, 2018 and told Anebere, "[I]f those notes aren't cleared, I'm dismissing your petition January 17th so you know that." Anebere said he understood. The court repeated, "No further continuances on these notes." Before the court concluded the hearing, it reminded Anebere that clearing the notes would require him to re-serve the amended petition.
4. The Court's Denial of Anebere's Petition, Entry of an Order and Judgment of Dismissal and Denial of Anebere's Motion for Reconsideration
Anebere appeared on January 17, 2018 without having cleared the probate notes prior to the hearing. The court told Anebere, "The last time we were here, I told [you] that if [you] didn't clear the notes, I was going to dismiss the petition. The notes are not cleared." Anebere responded that he had brought with him the documents that would clear the notes, although he acknowledged he had not yet filed them with the court. The court denied Anebere's petition with prejudice without considering the documents he brought with him. Anebere told the court he had difficulty clearing the notes "because of the holiday" and also had suffered an undisclosed medical issue. The court replied the holiday "was a month ago" and rejected any further excuses for Anebere's noncompliance telling him, "I'm not doing that, Mr. Anebere. This has been going on for months . . . and that is why I [said] no further continuances for today."
The court also entered an order granting Jones's petition and admitting to probate Simon's pour-over will dated June 8, 2006. Later that day, Anebere filed the documents he contended cleared the notes. However, those documents related to the original petition filed in May 2015. In particular, in response to note C, he supplied evidence that he had published notice of the original petition in 2015. He did not address, let alone provide any evidence, that he had published notice of the amended petition, as the court, in both its notes and in its colloquy at the last hearing, expressly advised him to do.
We augment the appellate record on our own motion to include the separate minute order dated January 17, 2018 admitting Simon's June 8, 2006 will to probate. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
On January 26, 2018 the court entered an "order and judgment of dismissal," which again recited that Anebere's petition had been denied with prejudice.
On January 31, 2018 Anebere filed a motion for reconsideration pursuant to Code of Civil Procedure section 1008, subdivisions (a) and (e), seeking reinstatement of his petition to admit to probate the purported holograph will. Anebere included with his motion his declaration attesting that he had been very ill when he returned from Nigeria for the hearing in November 2017. He also alleged he had undergone extensive oral surgery in December 2017 that further impeded his ability to clear the notes prior to the January 17, 2018 hearing. Anebere argued he had complied with the court's order to clear the notes by bringing the documents with him to the January 2018 hearing. Anebere attached those documents to his motion and requested the court "revoke[] its order of dismissal with prejudice and reinstate [his] probate petition" so that his case could be tried on its merits. The motion was set for hearing on March 14, 2018.
On February 14, 2018 Anebere filed a timely notice of appeal from the court's January 26, 2018 order and judgment of dismissal. On March 14, 2018 the court denied Anebere's motion for reconsideration, explaining it had lost jurisdiction to consider the motion when Anebere filed his notice of appeal. No appeal has been filed from the court's March 14, 2018 order.
We augment the appellate record on our own motion to include the March 14, 2018 minute order denying Anebere's motion for reconsideration for lack of jurisdiction. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
DISCUSSION
1. Governing Law and Standard of Review
Code of Civil Procedure section 575.1 authorizes the judges of each superior court to adopt local rules designed to expedite and facilitate the business of the court. Local Rules, rule 4.4(b), provides, "The 'Matters to Clear' section of the Probate Notes informs the parties of additional documents that are necessary to justify approval of the petition. Counsel must clear the items noted under the 'Matters to Clear' section no later than 3:30 p.m. of the second court day preceding the hearing date." Code of Civil Procedure section 575.2 authorizes the superior court to impose sanctions for violation of its local rules, including violations by a self-represented litigant. Local Rules, rule 4.4(c) provides, "If the Probate Notes are not timely cleared, the court will continue the hearing, place the matter off calendar, deny the matter without prejudice, or take other action it deems necessary."
We review a ruling based on a violation of the local rules for abuse of discretion. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1364 (Elkins); In re Harley C. (2019) 37 Cal.App.5th 494, 510.) Typically, absent some history of litigation abuse, "'[a]n order based upon a curable procedural defect [including failure to file a statement required by local rule], which effectively results in a judgment against a party, is an abuse of discretion.'" (Elkins, at p. 1364; Harley C., at p. 510.)
2. The Court Did Not Abuse Its Discretion in Denying Anebere's Petition with Prejudice
Anebere contends the court abused its discretion when it dismissed his petition with prejudice for his "technical violation" of rule 4.4(b) of the Local Rules. In describing the court's order as a drastic remedy for a curable procedural infraction, however, Anebere ignores his extended history of promising, and failing, to comply with the court's orders to clear the notes. To summarize, Anebere filed his amended petition in October 2016. In November 2016 the court identified seven matters for Anebere to clear, including publication of notice of the amended petition. Anebere continued to promise he would address those matters; and he received, in exchange for that promise, multiple continuances to permit him to do just that. Finally, on November 15, 2017, a year after the initial continuance, the court granted Anebere a final two-month continuance for the sole purpose of allowing Anebere to address and clear the court's probate notes. Despite this continuance and the court's warning that failure to comply would result in dismissal of his petition, Anebere failed to clear the notes in accordance with Local Rules, rule 4.4(b).
Acknowledging he violated Local Rules, rule 4.4(b) by failing to clear the notes at least two court days prior to the hearing, Anebere asserts he substantially complied by bringing the necessary documents with him to the hearing. The documents Anebere supplied and filed later that day, however, were directed to his original petition, not to his amended petition: For example, Probate note C stated "No pub. LA"—indicating that Anebere had not yet complied with Probate Code section 8120's requirement that notice of the hearing to administer the estate be published. Anebere brought documents demonstrating he had published notice in June 2015 in a Los Angeles newspaper identifying a hearing date of June 23, 2015 for interested parties to object to the probate of the holographic will. Because Anebere filed an amended petition in November 2016, however, he was required to serve notice, including by publication, of the amended petition. (See Cal. Rules of Court, rule 7.53(a) ["[a]n amended pleading or an amendment to a pleading requires the same notice of hearing (including publication) as the pleading it amends"].)
Anebere's status as a self-represented litigant does not explain his failure. The court specifically reminded Anebere at the November 2017 hearing that clearing the notes meant he would be required to serve the amended petition in accordance with the Probate Code. Because all of Anebere's documents related solely to his original petition, not his amended petition, Anebere never responded to, let alone fully cleared, the court's probate notes. Accordingly, Anebere failed to demonstrate substantial compliance with the court's orders and the Local Rules. (See generally Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23, 29 [doctrine of substantial compliance excuses literal noncompliance only when there has been "actual compliance in respect to the substance essential to every reasonable objective of the statute"]; Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1430 [same].)
We recognize that dismissal of an action for procedural defects, including the failure to comply with a local rule, is a drastic remedy that should be used sparingly, and generally only after repeated abuses. (Elkins, supra, 41 Cal.4th at p. 1364; cf. Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1399 ["'[p]reventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective'"]; Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 97 [imposition of sanctions that would result in termination of litigation due to procedural error is "disfavored"].) However, the failure to provide notice to interested parties is not an insignificant or technical violation; it goes to the heart of due process protections for all interested persons. (See Estate of Kelly (2009) 172 Cal.App.4th 1367, 1374 [notice requirements of Probate Code have constitutional due process implications]; see generally Estate of Radovich (1957) 48 Cal.2d 116, 120-121 [because probate court jurisdiction is in rem and settles right of distribution conclusively against all interested persons regardless whether they were personally served or named in the complaint, proper notice to potential interested parties is of paramount concern; "[b]y giving the notice prescribed by the statute, the entire world is called before the court, and the court acquires jurisdiction over all persons for the purpose of determining their rights to any portion of the estate"].)
At oral argument Anebere's counsel recited the jurisprudential preference for trying cases on their merits and pleaded with this court as a "matter of fairness" to reverse the probate court's order and permit Anebere's case to rise or fall on its merits. The scope of our appellate review, however, does not permit a balancing of the equities anew but requires us simply to determine whether the probate court abused its discretion in making its ruling. When, as here, the probate court has granted multiple continuances to obtain a party's compliance with the rules, all to no avail, we cannot say it is an abuse of discretion for the court under those circumstances to impose the ultimate sanction, particularly when the transgression relates to fundamental notice requirements and follows a warning that continued lack of compliance would result in dismissal. (See Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 392 ["willful noncompliance" with court's orders justified terminating sanctions resulting in default judgment]; see generally Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516 ["'"where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction"'"].)
Anebere does not contend, nor does the record suggest, that Local Rules, rule 4.4 conflicts with a state statute, the issue presented in Elkins, supra, 41 Cal.4th at page 1368 and In re Harley C., supra, 37 Cal.App.5th at pages 509-510.
3. We Have No Jurisdiction To Review the Denial of Anebere's Motion for Reconsideration
In his briefs in this court Anebere contends, citing Code of Civil Procedure section 473, subdivision (b), his failure to clear the probate notes was excusable neglect caused by medical and dental conditions he experienced in November and December 2017. However, Anebere never moved in the probate court for relief under section 473, subdivision (b). Nor would it help Anebere for us to construe his motion for reconsideration under section 1008 as one for relief under section 473, subdivision (b). (Cf. Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 925 fn. 6 [trial court properly considered postjudgment motion for reconsideration as motion to vacate under section 473].) Anebere's notice of appeal, filed February 14, 2018, a full month before the court's ruling on his motion for reconsideration, sought review only of the January 26, 2018 order and judgment of dismissal. Absent a separate notice of appeal, we have no jurisdiction to consider the court's March 14, 2018 order denying the motion for reconsideration. (See Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1007-1008 ["[w]here several judgments and/or orders occurring close in time are separately appealable . . . , each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal," internal quotation marks omitted]; DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43 [same].)
In any event, the probate court correctly concluded Anebere's filing of a notice of appeal seeking review of the January 26, 2018 denial of his petition to admit the holographic will to probate deprived the court of jurisdiction to reconsider or vacate that order. (See Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189-190.) --------
DISPOSITION
The order and judgment of dismissal entered January 26, 2018 is affirmed. Jones is to recover his costs on appeal.
PERLUSS, P. J. We concur:
ZELON, J.
FEUER, J.