Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 262684
Banke, J.
Ronald Daley, an heir of the estate of Gertrude Daley, appeals from an order of the probate court denying his petition to remove the administrator of the estate, Gregory O’Keeffe. The probate court did not abuse its discretion in denying the petition, and we therefore affirm its order.
We refer to Mr. Daley hereinafter by his first name to avoid confusion.
Background
This is Ronald’s tenth appeal in propria persona in this probate proceeding, which remains open more than 16 years after his mother, Gertrude Daley, died intestate. We have recited the history of this proceeding many times in our prior opinions. A number of our opinions address efforts by Ronald and his sister, Carolyn Daley, to prevent the sale of real property located on 25th Avenue (the 25th Avenue property), the rejection of their attempted overbid for the property based upon their anticipated distributive share of the estate, and an ongoing dispute about who was responsible for the delay in completing the sale of the property. (E.g., appeal Nos. A109762 [upholding sale of 25th Avenue property]; A118233 [holding substantial evidence supported probate court’s finding Ronald and Carolyn’s recording of invalid gift notices contributed to the delay in the sale of the property]; see also appeal No. A126490 [upholding probate court’s rejection of Ronald and Carolyn’s attempted overbid for property located on 24th Avenue].) This appeal also largely concerns the 25th Avenue property and, specifically, Ronald’s petition to remove O’Keeffe as administrator on the grounds his and Carolyn’s efforts to purchase the property were improperly stymied, the sale was contrary to the desires of “all” beneficiaries (including Ronald’s other two siblings, Phillip Daley and Pamela Daley Keyes), and the sale was unduly delayed, constituting wrongful neglect in handling the estate. Ronald also contends, in a seemingly contrary position, that O’Keeffe should have rejected the accepted bid when several years later the property was worth considerably more in the then escalating real estate market.
The nine prior appeals and decision dates are: Estate of Daley (Oct. 11, 2006, A109762); Estate of Daley (Jan. 7, 2008, A113999, A116232); Estate of Daley (Apr. 29, 2008, A118233); Estate of Daley (Sept. 16, 2008, A120213); Estate of Daley (Oct. 28, 2008, A120596); Estate of Daley (March 27, 2009, A121671); Estate of Daley (Oct. 13, 2009, A123021); and Estate of Daley (March 4, 2011, A126490). The court takes judicial notice of the unpublished opinions in these appeals. (See Evid. Code, §§ 452, subd. (d), 459.)
Ronald filed his petition to remove O’Keeffe as administrator on May 4, 2009. The petition is 100 pages in length and supported by 175 pages of exhibits. Carolyn filed a declaration in support, claiming the “duration” of the estate was “totally or almost totally Gregory O’Keeffe’s responsibility.” However, she largely disclaimed any personal knowledge of events, relying, instead, on Ronald’s asserted familiarity therewith.
The petition leveled 18 “charges” that allegedly supported O’Keeffe’s removal.
“Charge One” asserted O’Keeffe breached his fiduciary duty by “failing to speak” at the hearing confirming the sale of the 25th Avenue property when the probate court ruled Ronald and Carolyn had not made an effective overbid to purchase the property. Ronald claimed O’Keeffe was, in fact, holding sufficient funds of Carolyn’s to make a valid overbid, and should have so apprised the court.
“Charge Two” asserted (without elaboration) that four inventories (filed February 14, 1995, March 18, 1995, April 17, 1996, and February 18, 1997) were not timely filed.
“Charge Three” and “Charge Four” asserted the four inventories were not sufficiently specific and failed to include a $175,000 debt Ronald claimed he owed the estate and further asserted the estate tax returns also failed to include the supposed debt. Ronald claimed this failure to include the debt indicated it did not exist and therefore O’Keeffe improperly and “obsequiously asserted Ronald’s alleged but unproven debt” to “deny [Ronald] the right to increase the bid” for the 25th Avenue property. Ronald further claimed O’Keeffe did not take any affirmative action with respect to the debt until October 2004. Ronald asserted this showed both delay in marshalling the estate assets and “inconsistent” positions by O’Keeffe and prejudice toward Ronald and Carolyn. Ronald additionally complained O’Keeffe improperly included real property located at 45 Cerritos in the estate inventory and in estate tax returns. Ronald claimed “Judge Pollak” ruled he had an ownership interest in the property, but admitted “Commissioner Yaggy” and “Judge Grant” ruled against him in quiet title actions. Ronald contended O’Keeffe improperly remained silent in the latter proceedings about the contrary ruling by Judge Pollak. He further complained that in 1997, the Cerritos property was “returned” to him, but O’Keeffe failed to file an amended estate tax return seeking a refund of taxes improperly paid on the property.
“Charge Five” asserted O’Keeffe improperly retained $53,051.99 (totaling, with interest, approximately $62,400) of Carolyn’s property, and this prevented Carolyn from making a successful overbid for the 25th Avenue property. Ronald claimed O’Keeffe had an obligation to tell the court about these monies at the hearing confirming the sale of the property. He also claimed O’Keeffe was not repaying Carolyn (plus 10 percent interest) as estate proceeds allowed and was not providing annual accountings.
“Charge Six” asserted O’Keeffe failed to file a petition for final distribution within two years. Ronald disputed O’Keeffe’s assertion the delay was due to conflict among the heirs, as having “no basis in fact.” Ronald further claimed his and Carolyn’s filing of “Gift Notices” as to the 25th Avenue property had no bearing on the asserted delay in its sale between February 1997 and February 2005.
“Charge Seven” and “Charge Eight” asserted O’Keeffe had never included in his status “reports” a notification “in 10-point boldface type” that “YOU HAVE THE RIGHT TO PETITION FOR AN ACCOUNT UNDER SECTION 10950 OF THE CALIFORNIA PROBATE CODE” and had failed to file annual accountings between January 1998 and June 2005. Ronald therefore claimed he was never notified of his “right” to an accounting and thus was “oblivious to the financial status of the Estate for long periods of time.”
“Charge Nine” asserted O’Keeffe failed to make the required showing of “necessity” to confirm the sale of the 25th Avenue property. Ronald further claimed O’Keeffe had not properly signed the petition to confirm the sale under penalty of perjury.
“Charge Ten” asserted O’Keeffe failed to obtain an order allowing O’Keeffe “to offer [the 25th Avenue property] for sale.” Ronald also complained O’Keefe failed to prepare a “comprehensive plan” once he (O’Keeffe) decided to “liquidate” the estate assets and, specifically, the 25th Avenue property. Ronald additionally claimed O’Keeffe acted contrary to the “expressed desires of all the heirs” in the disposition of the property, asserting Phillip and Pamela wanted the property “sold” for the “highest price” and Ronald and Carolyn were “willing and able” to pay more for it than the bid. Thus, Ronald asserted the rejection of his and Carolyn’s attempted overbid thwarted all parties’ desires. He also claimed O’Keeffe should have sought to partition the property, rather than put it up for sale. He additionally claimed O’Keeffe should have worked toward selling the property to Ronald and Carolyn, given their stated interest in acquiring it as early as 1995 and reiterated in February 1997.
“Charge Eleven” repeated the assertion O’Keeffe “disregard[ed]” the “stated desires of the four heirs as to the disposition of [the 25th Avenue property]” and confounded Ronald and Carolyn’s desire to make an overbid on the property. Ronald claimed O’Keeffe told him (Ronald) only minutes before the confirmation hearing that Ronald and Carolyn could not increase their bid by their anticipated distributive share of the estate. He disputed O’Keeffe’s position that the estate could not be “distributed” because of animosity between the heirs, and repeatedly claimed everyone’s desires would have been met, and great expense would have been saved, had O’Keeffe supported his and Carolyn’s overbid for the 25th Avenue property.
“Charge Twelve” asserted O’Keeffe violated Probate Code section 10310, subdivision (c), which allows any interested person to object to and present evidence against the confirmation of a sale of property. Ronald claimed O’Keeffe’s “failure to understand” this statute led to retention of counsel by and for O’Keeffe and the use of estate funds to pay for such, and the start of a “scenario of lies and deceptions” by O’Keeffe to protect himself from “his own incompetence” and the “substantial waste of the estate.” He asserted O’Keeffe’s failure to understand the statute manifested itself in O’Keeffe’s objection to Ronald’s attempt to make an overbid on behalf of Carolyn and O’Keeffe’s failure to tell the probate court he (O’Keeffe) was in possession of funds owned by Carolyn sufficient for a 10 percent cash deposit. Ronald also claimed O’Keeffe had no basis to object that Ronald was indebted to the estate, and in doing so, O’Keeffe was improperly taking sides against Ronald and Carolyn in favor of Phillip and Pamela. Ronald also repeated his claim that the sale of the 25th Avenue property “prejudiced the interests of all heirs.” He further claimed that by failing to file an “objection” in the probate court, Phillip and Pamela “waived” any objection to Ronald and Carolyn’s overbid.
“Charge Thirteen” asserted O’Keeffe violated Probate Code sections 10257 and 10258 when he sold to Phillip, on credit, certain personal property of the estate. Ronald claimed O’Keeffe was statutorily required to petition for approval to sell the property on credit if less than 25 percent of the sales price was paid in cash. He therefore claimed Phillip was required to pay $6,250 in cash for estate property sold to him for $25,000, and complained O’Keeffe never collected from Phillip. He further claimed Phillip was required to provide a note for the balance, bearing interest, secured by the personal property. He also claimed O’Keeffe told him as late as June 2008 that Phillip might not complete the sale.
“Charge Fourteen” largely reasserted the claims made in “Charge Thirteen.” Ronald claimed O’Keefe’s alleged statutory violations and wrongful sale to Phillip breached his fiduciary duties to the heirs. Ronald further claimed O’Keeffe repeatedly mislead the probate court about Phillip’s payment for the property by stating the cash down payment came from Phillip’s distributive share of the estate and acted in violation of the statutes by viewing the sale as not occurring at the time the probate court approved it, but as occurring when Phillip actually took possession of the property (and also cleaned out the house, leaving it ready for transfer). Ronald insisted O’Keeffe made fraudulent misrepresentations to the probate court, allegedly proven by (a) O’Keeffe’s failure to reject the Toms’ January 1997 $456,789 bid for the 25th Avenue property, when, by January 2005, when the court finally confirmed the sale to the Toms, the property was worth $1.1 million and (b) O’Keeffe’s alleged mishandling of Ronald and Carolyn’s attempt to make an overbid on the property (for all the reasons recited in other “Charges”).
“Charge Fifteen” also reasserted the claims made in “Charge Thirteen” in connection with the sale of personal property to Phillip. Ronald additionally claimed O’Keeffe failed to comply with the probate court’s order confirming the sale of the property (filed April 4, 1997), which stated the purchaser was to remove the property within two weeks of the order or a reasonable time thereafter within the discretion of the executor. Ronald asserted that as of the date he filed his petition to remove O’Keeffe as administrator (May 4, 2009), the personal property still had not been removed from the 24th Avenue property. Ronald maintained O’Keeffe was “in contempt” of the order confirming the sale and as a result of the personal property remaining on the premises, the estate had been deprived of rental income from the 24th Avenue property for 12 years.
“Charge Sixteen” asserted the 25th Avenue property should have been partitioned, rather than sold. Ronald again claimed the sale was contrary to the desires of all heirs, and that partition would have met Phillip’s and Pamela’s desire to sell at the highest price, and Ronald’s and Carolyn’s desire to buy the property through a combination of their interests in the estate and additional resources. Ronald asserted O’Keeffe’s opinion that partition was not feasible was “nothing other than fatuous rhetoric.”
“Charge Seventeen” reasserted that the 25th Avenue property had not been sold for the “highest and best” price, specifically because O’Keeffe did not “ask” in open court if there was an overbid and “obfuscate[ed]” as to Ronald and Carolyn’s effort to make an overbid. The asserted obfuscation was O’Keeffe’s reference to a January 22, 1997, letter from Phillip’s and Pamela’s attorney stating they had claims against Ronald. Ronald claimed O’Keeffe’s reference to the letter put him in the position of favoring Phillip and Pamela and that he also wrongfully treated their letter as an “objection” to Ronald and Carolyn’s attempted overbid.
“Charge Eighteen” again asserted O’Keeffe had violated the Probate Code in connection with the 25th Avenue property. Ronald repeated his assertion that O’Keeffe had “misdirected” the court as to his and Carolyn’s attempt to make an overbid. He claimed no court order was issued after the February 19, 1997, hearing to confirm the sale to the Toms, and O’Keeffe then “waited” over 16 months to file a petition for instructions with respect to the property. Still no court order ensued (apparently because of an anticipated proceeding by O’Keeffe against Ronald and Carolyn to quiet title to the property). Ronald asserted O’Keeffe’s “failure to abide by [the] probate code” pertaining to sales and overbids and “cumulative misconduct, misdirection, misrepresentation and mischaracterization” after the February 19 confirmation hearing caused an excessive delay in the sale and substantial waste of the estate.
O’Keeffe responded to each “charge, ” asserting all of the actions about which Ronald complained had been approved by the probate court and affirmed on appeal, as demonstrated by numerous exhibits, including this court’s opinions in five of Ronald’s appeals.
We note O’Keeffe’s opposition was filed before we issued our opinion in Ronald’s ninth appeal affirming the probate court’s order confirming the sale of real property located at 3000 24th Avenue property and also upholding the probate court’s rejection of Ronald and Carolyn’s attempted overbid for that property. (Estate of Daley (March 3, 2011, A126490) [nonpub. opn.].)
On July 20, 2009, the probate court (Honorable David Ballati), at Ronald’s request, continued the matter for an evidentiary hearing. After several continuances, the matter was heard again on August 31, 2009.
In the meantime, on August 13, 2009, Ronald filed a “supplement” to his petition to remove O’Keeffe as the administrator, providing additional evidence in support of his charges against him. Ronald also made new charges:
“Charge Nineteen” asserted O’Keeffe treated him differently than he did Philip in connection with the personal property at and an inspection of the 24th Avenue property. Whereas Ronald’s property was removed and placed in storage by O’Keeffe, Philip’s was allowed to remain. Ronald also claimed there was “disputed” property which O’Keeffe did not accurately account for.
“Charge Twenty” asserted O’Keeffe had failed to maintain the 24th Avenue property.
“Charge Twenty One” asserted O’Keeffe had failed to present to the probate court a claim made by Carolyn in 1995 for the payoff of a mortgage on the 24th Avenue property.
O’Keeffe responded to the new “charges, ” including explaining many notices had been given to Ronald about his personal property and the property had been the subject court orders, the 24th Avenue property was maintained in a condition appropriate to the condition it was in when the estate opened, and other than the 1995 letter from Carolyn, which admittedly had been overlooked, her mortgage reimbursement claim had not been pursued until 2005, whereupon it was promptly paid.
On August 31, 2009, the court (Honorable Julie Tang) heard the matter. However, it did not have time that day to hold an evidentiary hearing as requested by Ronald. It did, however, discuss its tentative ruling—that most of the facts underlying Ronald’s claims had been adjudicated in prior proceedings. It therefore asked Ronald to submit a written offer of proof identifying the relevant evidence that had not previously been considered and ruled on by the court.
Ronald submitted a brief entitled “Attempt to Elaborate On and Clarify Issues....” It consisted of (a) additional argument that no court had examined the “root cause” of the delay in closing the estate and (b) a line by line examination and purported response to the court’s statements at the August 31 hearing.
The court called the matter for an evidentiary hearing on October 30, 2009. Ronald first claimed O’Keeffe could not be represented by counsel. The court disagreed, noting O’Keeffe had obtained an order allowing the retention of counsel, an order Ronald had not appealed and as to which he had not sought clarification or limitation. The court also observed Ronald had not filed an offer of proof, but further arguments, and explained he needed to present specific evidence to support findings required by the law for removal of an administrator. Ronald eventually stated he did not intend to call any witnesses but O’Keeffe, who he then accused of being “a consummate liar.” Ultimately, Ronald called no witnesses and only offered further argument. The trial court ruled from the bench and denied his petition to remove O’Keeffe as administrator.
The court issued a written order November 25, 2009. The order stated the parties had been afforded a full opportunity to offer further evidence and call witnesses subject to offers of proof, no witnesses had been called, and court found Ronald had “failed to support his claim for removal of [the] personal representative.”
Discussion
Probate Code section 8502 provides: “A personal representative may be removed from office for any of the following causes: [¶] (a) The personal representative has wasted, embezzled, mismanaged, or committed a fraud on the estate, or is about to do so. [¶] (b) The personal representative is incapable of properly executing the duties of the office or is otherwise not qualified for appointment as personal representative. [¶] (c) The personal representative has wrongfully neglected the estate, or has long neglected to perform any act as personal representative. [¶] (d) Removal is otherwise necessary for protection of the estate or interested persons. [¶] (e) Any other cause provided by statute.” (Prob. Code, § 8502.)
Any interested person may petition for removal of a personal representative. (Prob. Code, § 8500, subd. (a).) The burden of proving grounds for removal is on the petitioner. The personal representative, in turn, has “the right to rely on the presumption of fair conduct and faithful performance of official duty until something [is] offered to overcome it.” (Estate of Buchman (1954) 123 Cal.App.2d 546, 554.) The courts are also cognizant that “difficult responsibilities are frequently cast upon attorneys and are undertaken with the knowledge that the compensation will be meager, and this... is a practice which should not be discouraged. While it is the clear duty of the court to remove an executor or administrator when his unfitness has been proved, it is at the same time the right of every trustee to receive full acquittance of charges impugning his integrity or competence which are not established by clear and satisfactory evidence.” (Estate of Wacholder (1946) 76 Cal.App.2d 452, 464.)
In reviewing an order on a petition to remove the administrator of an estate we give great deference to the decision of the probate court, and “except for clear abuse, the court’s ruling will not be interfered with on appeal.” (Estate of Effron (1981) 117 Cal.App.3d 915, 930.) “ ‘The court has a very large discretion in determining whether, upon the facts presented to it, the representative whom it appointed shall either be suspended or removed, and unless it appears that such discretion has been abused, and especially where the evidence is such that different minds might reach different conclusions thereon, the action of the trial court will not be disturbed on appeal. [Citations.] It has been held that an appellate court should not interfere unless it is clearly shown that there has been a gross abuse of discretion.’ ” (Estate of Kromrey (1950) 98 Cal.App.2d 639, 664-665, quoting 11a Cal.Jur. (1934) Executors and Administrators, § 283, p. 403.)
Ronald has not shown that the probate court abused its discretion in denying his petition to remove O’Keeffe as the administrator. The record reflects the probate court understood the operative legal standards for the removal of an administrator and also understood it needed to make certain findings to order removal. (See Prob. Code, § 8502.) The record also reflects the court reviewed and considered the entire record before it, including all of Ronald’s papers filed in support of his petition and the showing O’Keeffe made in opposition. The court also afforded Ronald ample opportunity to present his case.
As the court explained during the hearings, most of the matters which Ronald claimed provided cause for O’Keeffe’s removal were matters that had been raised, and often vigorously argued, in prior proceedings, and the rulings on those matters were final either by passage of time or affirmance on appeal. For example, Ronald repeatedly pointed to O’Keeffe’s handling of the sale of the 25th Avenue property, and to his refusal to accept Ronald and Carolyn’s attempted overbid, as grounds to remove him. However, the sale and refusal to accept the overbid were approved and have been upheld on appeal. Regardless of whether these prior rulings meet all the requirements for collateral estoppel, the salient point is that O’Keeffe’s actions were approved by the courts, and it was not an abuse of discretion for the probate court to refuse to remove O’Keeffe on the basis of such actions.
On numerous points, Ronald and O’Keeffe presented conflicting evidence. For example: Ronald asserted O’Keeffe had favored Phillip’s interest over Ronald’s; O’Keeffe denied any favoritism. O’Keeffe stated there had been delays in handling the estate because of disputes between the heirs; Ronald claimed this was a lie. Ronald asserted O’Keeffe’s failure to reject the Toms’ 1997 bid (of $445,789) on the 25th Avenue property constituted gross mismanagement, given that sale of the property was not confirmed until 2005 (when the property was allegedly worth $1.1 million); O’Keeffe stated the primary cause for the delay in the sale was Ronald and Carolyn’s recording of improper lien notices clouding title and he acted in compliance with the law in accepting and honoring the Toms’ bid, actions approved by the court and upheld on appeal. It was for the probate court to resolve such conflicts in the evidence, and decide who to believe. (See Prob. Code, § 1046 [probate court “shall hear and determine any matter at issue and any response or objection presented, consider evidence presented, and make appropriate orders”].)
Ronald also complains the probate court did not make specific written findings. At the hearing, however, he stated he was not seeking a statement of decision. Accordingly, the court was not obligated to make special written findings. (See 24 Cal.Jur.3d (2011) Decedent’s Estates, § 93 [“Under the general hearing procedure for probate matters, the court must hear and determine any matter at issue and make appropriate orders. However, under the general Probate Code provision making the Code of Civil Procedure applicable to probate proceedings, the court is not required to make written findings of fact and conclusions of law on the trial of a question of fact.”], fns. omitted; see also Estate of Hirschberg (1964) 224 Cal.App.2d 449, 464-465 [order denying petition was sufficient based on general finding that administratrices had “ ‘not, in their fiduciary capacity, performed any act or omitted performance of any act subjecting them to removal under any of the removal provisions of the Probate Code; nor... done any act which would be detrimental to the proper administration of said estate and to the persons interested therein’ ”].)
There is no question there have been significant delays in the closing of this estate, but there are numerous reasons for this and it certainly is not all attributable to conduct by O’Keeffe. Ronald’s own conduct not only exacerbated any delays by O’Keeffe, but has contributed significantly to the delay in bringing this estate to a close. As we stated at the outset, this is Ronald’s tenth appeal. Collectively, these appeals have added years to the duration of the estate. While Ronald insists all the fault lay with O’Keeffe and he was exercising his “right” to appeal to correct asserted errors by O’Keeffe and the probate court, this simply is not a reasonable view of the situation as our last opinion—which ruled that Ronald is a vexatious litigant—makes clear. In any case, the probate court was entitled to assess the overall handling of the estate and to determine that any asserted shortcomings in O’Keeffe’s performance were not sufficiently egregious to warrant his removal, particularly at this late stage of the proceedings. (See Estate of Buchman, supra, 123 Cal.App.2d at pp. 554-555 [delays often happen and an executor is entitled to provide an explanation].)
The probate court therefore acted within its discretion in denying Ronald’s petition to remove O’Keeffe as the administrator.
At the hearing on his petition to remove O’Keeffe as administrator, Ronald also spent a significant amount of time objecting to O’Keeffe being represented by counsel retained and paid for by the estate. As the probate court pointed out, the retention of counsel had been previously approved, and if Ronald wanted a modification of that order, he needed to seek such relief, with proper notice to O’Keeffe. The only properly noticed matter before the probate court at the time was Ronald’s petition to remove O’Keeffe as administrator. Ronald similarly devotes a section of his briefs on appeal to arguing O’Keeffe was not entitled to representation at the hearing. Since that that issue was not properly before the probate court, it also is not properly before this court.
Disposition
The order denying Ronald’s petition to remove O’Keeffe as administrator is affirmed.
Having rejected Ronald’s appeal on the merits, we deny O’Keeffe’s motion under Code of Civil Procedure section 391.4 to require additional security pending disposition of the appeal.
We concur: Marchiano, P. J.Margulies, J.