Opinion
A164861
06-06-2023
LINH ARCHER et al., Petitioners and Respondents, v. NORMA ALDANARY ARDILA, Objector and Appellant.
NOT TO BE PUBLISHED
(Sonoma County Super. Ct. No. SPR-096112)
TUCHER, P.J.
After Victor Jacobs (decedent) died, his four children filed a petition to confirm one of them as trustee of his trust. Over the opposition of decedent's wife, Norma Aldanary Ardila, the trial court granted the petition. Ardila appeals, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Decedent has four adult children, Linh Archer, Kimberly Williams, Vic Jacobs, and Jahsiah Jacobs (collectively, petitioners). They filed a verified petition to confirm the trustee, ascertain the beneficiaries, and confirm the trustee's power on November 3, 2021. (Prob. Code, §§ 17200, 15602.) According to the petition, decedent created the Victor L. Jacobs Trust (the Trust) on January 1, 1999, and he served as the initial trustee and named his son Jahsiah as successor trustee. Decedent died on September 15, 2021, and, according to the petition, he may have married Ardila earlier that year.
Jahsiah Jacobs was formerly known by a different name. We will refer to him throughout as Jahsiah, and we refer to Vic Jacobs as Vic, intending no disrespect. Jahsiah is acting in propria persona in this appeal, and he has not filed a respondent's brief. A respondents' brief was filed on behalf of the other three petitioners.
The petition alleged that the Trust document was missing; that Ardila arrived at decedent's home from her native country within hours of his death; and that she had exclusive access to decedent's home for a period of time during which petitioners could not search for a copy of the Trust document.
The petition attached three documents showing the existence of the Trust and the identity of the initial and successor trustees. First was a copy of a 2002 deed in which decedent quitclaimed real property to himself as trustee of the Trust. Second was a 2013 trust certification for Bank of the West, stating that decedent was the settlor and currently acting trustee of the Trust and Jahsiah was the successor trustee. Third was a full reconveyance of real property to decedent as trustee of the Trust after his mortgage was paid off.
As to the beneficiaries of the Trust, the petition alleged, with supporting declarations by Vic and Jahsiah, that decedent told Vic in December 2020 that his assets were held in trust and would be divided and distributed to his children in equal shares. When Vic heard decedent might have married Ardila in January 2021, decedent told him not to worry about the marriage because the assets were still in the Trust and would still be distributed to the four children in equal shares. Additionally, decedent told Jahsiah just after January 2021 that he had purchased some property for Ardila in her native country and had otherwise taken care of her, and the Trust would still go equally to his four children.
Petitioners sought an order confirming Jahsiah as sole trustee, with all the powers granted to trustees under California law, and confirming that petitioners were the beneficiaries, entitled to distribution of four equal shares.
Ardila filed a verified opposition to the petition. She alleged she and decedent married on January 7, 2021, after dating since 2014 and living together in his home since 2018. Decedent did not tell his children about the marriage, and it was his desire to keep her safe. They had joint checking and savings accounts. Decedent told her on many occasions that he had changed his trust to include her as a beneficiary. She indicated she would like to provide evidence showing decedent's intent to provide for her after his death. She attached evidence that decedent had made her a beneficiary on his account at a credit union and added her name to his checking account at a bank.
The hearing was scheduled for February 4, 2022, and in advance of it the trial court published a tentative ruling concluding Jahsiah was sole trustee of the Trust. At the February 4 hearing, the matter was continued to February 25. On that date, the trial court adopted its previously published tentative ruling, finding that decedent created the Trust on January 1, 1999, that Jahsiah was successor trustee, that the real property was part of the Trust, that although the original Trust document had not been found, decedent did not intend to destroy or revoke it before his death, and that the Trust remained in existence. The court ordered that Jahsiah was the sole trustee of the Trust, with all the powers granted under California law, that petitioners were the beneficiaries, and that the trust property would pass to them in equal shares. There is no reporter's transcript of the February 25, 2022 hearing.
Ardila has appealed from the February 25, 2022 order.
DISCUSSION
I. General Legal Principles
We begin with bedrock principles of appellate review. We presume the trial court's judgment is correct, and we "adopt all intendments and inferences to affirm the judgment or order unless the record expressly contradicts them." (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324 (Nielsen).) The party challenging the judgment bears the burden to provide an adequate record to assess error (ibid.), and failure to do so" 'requires that the issue be resolved against [the appellant]'" (Jameson v. Desta (2018) 5 Cal.5th 594, 609). And, where the appellant does not provide a record of the oral proceedings, whether in the form of a reporter's transcript, an agreed statement, or a settled statement (Cal. Rules of Court, rules 8.120, 8.130, 8.134 &8.137), we consider only whether error appears on the face of the record. (Nielsen, at pp. 324-325.) As a result, as our high court has explained, "the absence of a court reporter at trial court proceedings and the resulting lack of a verbatim record of such proceedings will frequently be fatal to a litigant's ability to have his or her claims of trial court error resolved on the merits by an appellate court." (Jameson, at p. 608.) As we shall discuss, these principles foreclose some of Ardila's claims.
A valid trust requires a competent trustor, the intention to create a trust, a trustee, an estate conveyed to the trust, acceptance of the trust by the trustee, a beneficiary, a legal purpose, and legal terms. (Reagh v. Kelley (1970) 10 Cal.App.3d 1082, 1089.) The declaration of trust must be "reasonably certain in its terms" (ibid.), including the property included in the trust and the beneficiaries (Lane v. Whitaker (1942) 50 Cal.App.2d 327, 331).
II. Due Process
Ardila contends the trial court denied her due process right to an evidentiary hearing on the petition. Section 1022 of the Probate Code provides that "[a]n affidavit or verified petition shall be received as evidence when offered in an uncontested proceeding under this code." Where, as here, a petition is contested, "absent a stipulation among the parties to the contrary, each allegation in a verified petition and each fact set forth in a supporting affidavit must be established by competent evidence," rather than through affidavits or verified petitions. (Estate of Lensch (2009) 177 Cal.App.4th 667, 676.) This restriction on the use of declarations and verified petitions in contested probate proceedings does not apply, however, "when 'the parties d[o] not object to the use of affidavits in evidence and both parties adopt[] that means of supporting their positions.'" (Estate of Bennett (2008) 163 Cal.App.4th 1303, 1309.)
In accordance with these principles, the court in Estate of Lensch concluded the trial court erred in denying a request, made at the hearing on a contested petition, for an evidentiary hearing. (Estate of Lensch, supra, 177 Cal.App.4th at pp. 676-677.) Similarly, in Estate of Bennett, the probate court erred in denying an evidentiary hearing to a party who asserted both in written opposition to a petition and at the hearing that the factual conflict presented by the parties' competing declarations required an evidentiary hearing. (Estate of Bennett, supra, 163 Cal.App.4th at pp. 1309-1310.)
Ardila contends we should reach the same result here. She points to the following paragraph in her opposition to the petition: "Mrs. Ardila would like to also provide evidence showing her husband's intent to provide for her even after his death. On February 27, 2021, the deceased completed a 'Change of Beneficiaries' on an account with Redwood Credit Union naming his wife Norma Ardila as the primary beneficiary to receive 100% of the proceeds of all share accounts held under the account number established under this application at his death. See attached Exhibit B." (Underlining and bold print omitted.) Exhibit B was the change of beneficiary form. By this language, Ardila contends, she requested an evidentiary hearing, and the trial court erred in failing to provide one. We conclude that no request for an evidentiary hearing is evident on the face of this record, in that the language Ardila quotes could easily be construed as meaning simply that she requested the court consider the explanation she gave in her verified opposition and the attached document.
The lack of a transcript of the proceedings at the hearing on the petitions thus prevents us from accepting Ardila's argument. There was no court reporter for the hearing, and the minute order indicates simply that the court and counsel discussed the matter before the court made its order; that petitioners' counsel was in agreement with the court's tentative ruling in their favor; and that Ardila's counsel stated there was no trust in the matter. This recitation leaves many questions unanswered. Did Ardila request an evidentiary hearing? We do not know. Did she seek to testify to provide her version of events and face the risks of cross-examination? We do not know. Did she agree that the court could make its decision based on the verified pleadings and declarations of the parties, as well as argument? (See Estate of Bennett, supra, 163 Cal.App.4th at p. 1309.) Again, we do not know. Reversing on this ground would require us to presume the trial court violated the law by basing its rulings on the documents before it in the face of a request to examine witnesses at an evidentiary hearing. That we may not do. (See Nielsen, supra, 178 Cal.App.4th at p. 324.) We thus must reject this claim of error.
In her opening brief, Ardila also contends she was deprived of due process because she was never served with Vic and Jahsiah's declarations, and she therefore had no opportunity to file formal objections to them. In her reply brief, however, she acknowledges that she was in fact served with the declarations on February 8, 2022, after the trial court issued its tentative ruling but more than two weeks before the February 25 hearing. Despite the apparently delayed service, we see no violation of due process.
In her reply brief, Ardila points out that the declarations were served by email and suggests service was ineffective because petitioners have not provided us with proof that her counsel consented to electronic service. She cites to former section 1010.6, subdivision (a)(2)(A)(ii) of the Code of Civil Procedure, but nothing in the statute indicates that petitioners must provide us with such proof. (See also former Code Civ. Proc., § 1010.6, subd. (e) [party represented by counsel who has appeared in action "shall accept electronic service" of documents that may be served by other means].) Nor is there any indication that she objected to the declarations on this ground in the trial court.
III. Admission of Evidence
Ardila also contends petitioners' declarations were inadmissible secondary evidence, and the trial court abused its discretion in admitting them. Section 1521 of the Evidence Code provides that "[t]he content of a writing may be proved by otherwise admissible secondary evidence," but such secondary evidence should be excluded if "[a] genuine dispute exists concerning material terms of the writing and justice requires the exclusion" or if "[a]dmission of the secondary evidence would be unfair." (Evid. Code, § 1521, subd. (a).) The secondary evidence must comply with the general rules of admission of evidence, including those regarding hearsay. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1070, fn. 2.) In addition, Ardila points to section 1523 of the Evidence Code, which limits the circumstances in which oral testimony is admissible to prove the content of a writing, such as where the proponent does not have possession or control of a copy of the writing, and either the original was lost or destroyed without fraudulent intent on the proponent's part (Evid. Code, § 1523, subd. (b)) or the original is not reasonably procurable (id., subd. (c)).
Ardila contends that assertions about the contents of the Trust contained in petitioners' declarations are inadmissible double hearsay because neither Vic nor Jahsiah had seen the trust document, but were merely reciting what decedent purportedly told them; because there was a genuine dispute about the material terms of the Trust; and because there was no finding the Trust document was destroyed without fraudulent intent.
We must reject this argument. A judgment may not be set aside on the ground of erroneous admission of evidence unless the record shows an objection was made in the trial court. (Evid. Code, § 353, subd. (a); People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) Without a transcript of the hearing on the petition, there is no indication Ardila made any appropriate objection.
Ardila contends she did not forfeit her hearsay objections because she was not served with Vic and Jahsiah's declarations until after the trial court had published its tentative ruling. But the fact remains that she received them more than two weeks before the February 25, 2022 hearing. Under the circumstances, we apply the ordinary rule that requires an objection to preserve an appeal to the admission of evidence.
IV. Evidence in Support of Ruling
Ardila contends, however, that the statements in the declarations do not constitute substantial evidence to support the trial court's ruling because they are uncorroborated multiple-level hearsay. (See In re Lucero L. (2000) 22 Cal.4th 1227, 1244 [" 'The admissibility and substantiality of hearsay evidence are different issues' "].) The standard of review on appeal is well settled. "Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment.... We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court's findings and decision, resolving every conflict in favor of the judgment." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) If substantial evidence is present, "no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld." (Id. at p. 631.) Substantial evidence is that which is "of' "ponderable legal significance,"' ' "reasonable in nature, credible, and of solid value." '" (Ibid.)
For her argument, Ardila relies upon authorities stating that uncorroborated hearsay does not constitute substantial evidence. (In re Lucero L., supra, 22 Cal.4th at pp. 1244-1245 [hearsay statements of child in social study]; Gregory v. State Bd. of Control (1999) 73 Cal.App.4th 584, 588, 597 [victim restitution]; In re Leland D. (1990) 223 Cal.App.3d 251, 258-260 [nonspecific hearsay evidence of gang membership].) Ardila contends that, similarly here, the only evidence of the content of the Trust is inadmissible hearsay, that neither Jahsiah nor Vic had read the Trust and they therefore had no personal knowledge of its contents or its beneficiaries, and that there is no evidence the trustee accepted the Trust. (See Reagh v. Kelley, supra, 10 Cal.App.3d at p. 1089.)
But in this case there is independent evidence that the Trust existed; that it was created in 1999 when all four of decedent's children were already in existence, before decedent's relationship with Ardila began and more than 20 years before he married her; that decedent accepted the Trust in his role as trustee; and that as recently as December 2019 the Trust encompassed decedent's real property, a home in Santa Rosa. There is also independent evidence that one of his children, Jahsiah, was the successor trustee. Although Ardila's verified opposition stated that decedent told her he had made changes to his trust to include her as a beneficiary, she provided no specifics as to the nature of any such change to the trust, and no trust amendment or other evidence of a change was found in the home the couple shared. And, in addition to Jahsiah's statement that decedent told him he had bought property for Ardila in her native country, there is evidence decedent separately made provision for Ardila by making her a beneficiary on at least some of his accounts.
In this context, we cannot conclude the hearsay statements Ardila challenges about the continued existence of the Trust are uncorroborated or that the evidence is too flimsy to support the trial court's findings.
We recognize there is no independent direct evidence of the identity of the beneficiaries of the Trust. According to Jahsiah, decedent told him he had chosen Jahsiah as successor trustee because he trusted Jahsiah to split the Trust equally among decedent's four children. According to Vic, decedent said in December 2020 that his four children were equal beneficiaries of the Trust. Ardila suggests these statements are inherently suspect because decedent is not alive to refute them. It is true that "[o]ral declarations of a party whose lips are sealed by death is evidence of the weakest kind and should be received with caution," particularly "when the declaration is presented through a witness with a substantial pecuniary interest in the probative effect of the decedent's declaration." (Estate of Armstrong (1966) 241 Cal.App.2d 1, 10.) But there is independent evidence of the existence and assets of the Trust and of the identity of one of decedent's children as successor trustee, and we see nothing suspect in evidence that at a time he had not yet begun his relationship with Ardila the decedent named his children as equal beneficiaries of the Trust upon his death. Under the circumstances, we reject Ardila's challenge to the sufficiency of the evidence to support the trial court's findings.
In a closely related argument, Ardila contends the trial court abused its discretion in granting the petition based solely on the declarations of Vic and Jahsiah, which she characterizes as incompetent multiple-level hearsay. (See Kinney v. Sacramento City Employees' Retirement System (1947) 77 Cal.App.2d 779, 782 ["if a local administrative board bases its order solely on incompetent hearsay, it acts arbitrarily, capriciously and in abuse of its discretion"], citing Walker v. City of San Gabriel (1942) 20 Cal.2d 879, 881, overruled on another point as stated in In re Lucero L., supra, 22 Cal.4th at p. 1244). But, as we have just explained, the evidence that the 1999 Trust existed and was still in effect was not uncorroborated. We see no abuse of discretion.
On January 19, 2023, respondents filed a request for judicial notice of Ardila's petition for omitted spouse share in another action, filed July 26, 2022. This petition was not before the trial court when it made the ruling before us on appeal. We deny the request for judicial notice. We also note that Ardila urges that she is entitled to her omitted spouse share under Probate Code section 21610, and she asserts she has filed a petition under section 21610 in a separate action. We express no view on the correct outcome in that action.
DISPOSITION
The February 25, 2022 order is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: PETROU, J. RODRÍGUEZ, J.