Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. PR157882
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
In this probate action, appellant Daniel Levin, as the surviving spouse, petitioned the probate court for an order confirming his community property share in certain assets held in the estate of his late wife, Alison Levin. The court granted the petition, finding that Levin owned one-half of the cash deposited in three bank accounts in Scotland and one-half of the proceeds resulting from the sale of a townhouse in England plus accrued interest. The executor of Alison’s estate, respondent Thomas Brooks Donnelly, sought relief from the order on the grounds of excusable neglect and surprise, pursuant to Code of Civil Procedure section 473, subdivision (b). The probate court granted the motion and set aside the order.
The probate action is captioned “Estate of Alison Margaret Beatt (otherwise Levin).” For purposes of clarity and not out of disrespect, we will refer to the decedent as Alison.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
On appeal, Levin challenges the order granting Donnelly’s section 473, subdivision (b) motion on the grounds that the probate court exceeded its jurisdiction, contravened California community property law, and violated his due process rights. For reasons that we will explain, we determine that Levin seeks review of a nonappealable order, and therefore we will dismiss the appeal.
II. FACTUAL AND PROCEDURAL BACKGROUND
Alison, a citizen of England, married Levin, a United States citizen, in 1996. After their marriage, the couple lived in England for approximately two years. During that time, they purchased real property in England, including a house known as Sheepcote House. In 1998, Alison and Levin moved to California. They sold Sheepcote House in 2002. The proceeds from the sale were deposited in an interest bearing account that Alison had opened in a Scottish bank, Adam & Company. When the couple purchased another home, known as Nashdom, in England in 2002, legal title was taken in Alison’s name. Alison transferred the title to Nashdom to her son, Theo Beatt, before her death in California in 2003. Alison’s will left all of her assets to Beatt.
Alison’s will was submitted to probate in England in 2004. Her brother Thomas Brooks Donnelly has served as sole executor of her estate during probate proceedings. According to Donnelly, the English court found that England was Alison’s domicile and issued a grant of probate of her estate. Distribution of estate assets was pending in 2006.
In the meantime, Levin challenged Beatt’s ownership of Nashdom in a lawsuit he filed in England. The High Court of Justice, Chancery Division, issued a ruling dated March 17, 2005, in which the court determined that Levin had intended that Alison own Nashdom and therefore her son Beatt held Nashdom in a resulting trust for her estate. However, the English court acknowledged Levin might have a claim to a community property interest in Nashdom under California law.
On February 16, 2006, Levin filed a spousal property petition in Santa Clara County Superior Court pursuant to Probate Code section 13650. The petition sought a determination that approximately $994,160 on deposit in bank accounts controlled by Donnelly, the executor of Alison’s estate, was community property belonging to Levin as the surviving spouse. A hearing on the petition was set for April 3, 2006.
Probate Code section 13650, subdivision (a) provides, “A surviving spouse or the personal representative, guardian of the estate, or conservator of the estate of the surviving spouse may file a petition in the superior court of the county in which the estate of the deceased spouse may be administered requesting an order that administration of all or part of the estate is not necessary for the reason that all or part of the estate is property passing to the surviving spouse. The petition may also request an order confirming the ownership of the surviving spouse of property belonging to the surviving spouse under Section 100 or 101.”
Prior to the April 3, 2006 hearing on the petition, Beatt contacted the probate court. The probate staff attorney responded to Beatt with the following e-mail message, dated March 13, 2006: “Dear Mr. Beatt, [¶] The court recently received your question regarding the Spousal Property Petition in the estate of your late mother Alison Beatt (case No. 1 06 PR 157882). I briefly reviewed the file. The only items presently in the file are the Petition and the Notice of Hearing. I gather from your email that you have already seen these. [¶] Since I am not the judge, I can’t say what the court will do at the hearing on April 3rd. However, I believe the petition cannot be granted that day due to the following problems: [¶] 1. The petition states that the property at issue (a bank account--or accounts) is located in the UK. Our court generally does not have jurisdiction over property located outside California. [¶] 2. The petition states that the accounts are ‘owned or controlled by the executor, Thomas Brooks Donnelly,’ and per paragraph 12 of the petition, ‘A petition for probate or for administration of the decedent’s estate was filed on June 30, 2004 in England.’ This suggests that the British court has already exercised its jurisdiction over whatever property of your mother is located in England. [¶] 3. There is no statement of facts required by paragraph 7 of the petition to support Mr. Levin’s allegation that all of the property should pass to or be confirmed to him. In fact, the statement in attachment 4.c. to the petition that there is a will leaving everything to you tends to negate that allegation. [¶] 4. The property is not specifically identified, i.e. bank account numbers, name and address of the bank. The attachment 7.b. error you mention regarding the total is not necessarily a problem as the value of the accounts would fluctuate, especially in terms of U.S. dollars. If the error is ‘huge’ as you suggest, that might concern the judge. But with the other problems already described the court won’t need to reach that error to deny the petition as presented. [¶] The above is based on a quick procedural review of Mr. Levin’s petition. It will be reviewed by one of our probate examiners a few days before the hearing and Mr. Levin will be informed of the problems mentioned above and anything else that may concern the examiner. This is standard practice in our court. [¶] I can’t tell you whether to hire an attorney. I doubt you would need one for the April 3rd hearing. At the least, Mr. Levin will have to amend his petition. If he does, he must send you a copy of the amended petition. If the court decides that it does not have jurisdiction, there should be no further proceedings in this court.” Beatt forwarded the probate attorney’s e-mail message to Donnelly on March 15, 2006.
The record reflects that on April 3, 2006, the probate court granted Levin leave to amend the spousal property petition. On April 4, 2006, Donnelly contacted the probate staff attorney by e-mail, as follows: “Dear [staff attorney]: I have recently received e-mails from Daniel Levin. I am the sole executor of my sister’s estate. [¶] Mr. Levin at his instigation renounced his role as co-executor. I have his letter setting this process in motion and would be happy to provid[e] the court with this and the full details of the process if it would be of help. There are several assertions that he makes in addition to that of coercion, with which I disagree. [¶] If the court requires me to supply factual information then I certainly shall. [¶] Please let me know the details of your requirements. [¶] Grant of Probate was obtained using a local firm of solicitors. I hope that further legal costs will not be required.” Donnelly did not receive a reply to his April 4, 2006 e-mail.
Levin filed an amended spousal property petition on April 14, 2006. In the amended petition, Levin asserted that nearly everything in Alison’s estate was community property, including the cash deposited in three bank accounts in the Scottish bank, Adam & Company, and the proceeds of the sale of Nashdom. Levin sought a spousal property order confirming that one-half of the community property belonged to him and was not part of Alison’s estate. After obtaining the desired spousal property order, Levin intended to present the order to the English court. A hearing on the amended petition was set for May 8, 2006. The notice of the May 8, 2006 hearing was served by mail on Beatt and Donnelly at their addresses in England.
Neither Beatt nor Donnelly appeared at the May 8, 2006 hearing. Levin appeared, and the probate court granted his amended petition. In its spousal property order filed May 18, 2006, the court confirmed that the following property belonged to Levin as the surviving spouse: (1) one-half of all of the cash deposited in three bank accounts with Adam & Company and the interest accrued on these funds since Alison’s death; (2) one-half of all proceeds resulting from the sale of Nashdom; or alternatively, if Nashdom had not been sold, one-half of all proceeds when the property is sold; and (3) one-half of all of the interest accrued on the proceeds from the sale of Nashdom.
On September 19, 2006, Donnelly filed a motion for relief from the May 18, 2006 spousal property order pursuant to section 473, subdivision (b). In his supporting declaration, Donnelly asserted that although he had received notice of the May 8, 2006 hearing on the amended spousal property petition, he assumed that the probate court did not require any further information from him because he had not received a response from the probate staff attorney to his April 4, 2006 e-mail. Donnelly was shocked when he received the May 19, 2006 spousal property order and sent an e-mail to the probate staff attorney that stated, “Dear [probate staff attorney]: [¶] Dan Levin has sent me a copy of the Court judgement dated 6th May. I am surprised that the court came to its decision solely on the basis of his submission. [¶] He now threatens to bring an action against me, if I ignore his claim of 50% of my sister’s estate. [¶] The estate has been administered with England being the uncontested country of domicile. [¶] Is there a mechanism of appeal against this decision granted by the Californian court. If so need one be represented by a Californian attorney?”
Code of Civil Procedure, section 473, subdivision (b) provides in pertinent part, “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”
We understand the e-mail to refer to the May 18, 2006 spousal property order.
In his motion, Donnelly argued that he was entitled to relief from the spousal property order on the section 473, subdivision (b) grounds of excusable neglect and surprise, because he had acted as a reasonably prudent person when he did not obtain counsel or appear at the May 8, 2006 hearing on the spousal property petition. Donnelly explained that, based on the March 13, 2006 e-mail from the probate staff attorney, he had reasonably assumed that the probate court did not require any information from him and the court would decline jurisdiction over an estate “already winding up probate proceedings in England.”
Additionally, Donnelly asserted that he had diligently filed his motion within the six-month period provided by section 473, subdivision (b). He further argued that the spousal property petition should be determined on the merits, noting that the May 18, 2006 spousal property order conflicted with the English court’s March 17, 2005 judgment regarding the ownership of Nashdom. Finally, Donnelly argued that setting aside the spousal property order would not unfairly prejudice Levin.
In his opposition to the motion, Levin contended that relief from the May 18, 2006 spousal property order should not be granted because Donnelly had received notice of the April 4, 2006 hearing on the original spousal property petition and the May 8, 2006 hearing on the amended spousal property petition. Further, Levin pointed out that the probate staff attorney had informed Donnelly, in his March 13, 2006 e-mail, that he could not tell Donnelly whether to hire an attorney. Levin also noted that Donnelly had relied upon legal counsel in England with respect to Alison’s estate. Finally, Levin argued that there were no legal reasons to set aside the spousal property order.
The probate court granted Donnelly’s motion and in its order of October 10, 2006, set aside the May 8, 2006 [sic], spousal property order “as to the Executor of the Estate of [Alison] and as to the sole beneficiary of that Estate, Theo Beatt.” Levin filed a timely notice of appeal from the October 10, 2006 order.
While the hearing date for the amended spousal property petition was May 8, 2006, the probate court’s order was entered on May 18, 2006. Therefore, we refer to the spousal property order at issue in this case as the May 18, 2006 spousal property order.
III. DISCUSSION
Our analysis begins with a discussion of the threshold issue of appealability, although Donnelly did not challenge the appealability of the October 10, 2006 order granting relief from the spousal property order in his respondent’s brief. “[S]ince the question of appealability goes to our jurisdiction, we are dutybound to consider it on our own motion.” (Olson v. Cory (1983) 35 Cal.3d 390, 398; van’t Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 559.) Having determined that the appealability of the October 10, 2006 order was at issue, we requested and received supplemental briefing from the parties.
In his respondent’s brief, Donnelly stated that the order was appealable pursuant to section 904.1, subdivision (a)(2) as an order after a final judgment. Section 904.1, subdivision (a)(2) provides, “(a) An appeal, other than in a limited civil case, is to the court of appeal. An appeal, other than in a limited civil case, may be taken from any of the following: [¶] . . . [¶] (2) From an order made after a judgment made appealable by paragraph (1).” In his supplemental brief, however, Donnelly argues that the October 10, 2006 order is nonappealable under the rules applicable to probate appeals. We agree.
“[N]ot every postjudgment order that follows a final appealable judgment is appealable.” (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651.) With respect to probate appeals, section 904.1, subdivision (a)(10) provides that an appeal may be taken “[f]rom an order made appealable by the provisions of the Probate Code. . . .” Thus, “ ‘[t]here is no right to appeal from any orders in probate except those specified in the Probate Code.’ [Citation.]” (Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1126; accord, Estate of Miramontes-Najera (2004) 118 Cal.App.4th 750, 755; Estate of Martin (1999) 72 Cal.App.4th 1438, 1441-1442.) An exception is that “[a]n order is appealable, even if not mentioned in the Probate Code as appealable, if it has the same effect as an order the Probate Code expressly makes appealable.” (Estate of Miramontes-Najera, supra, 118 Cal.App.4th at p. 755; Estate of Martin, supra, 72 Cal.App.4th at p. 1442.)
An order under section 473, subdivision (b) setting aside a spousal property order is not one of the orders expressly made appealable by the Probate Code. (Prob. Code, §§ 1300, 1303; Howard v. Superior Court (1944) 25 Cal.2d 784, 787 [probate court’s order under section 473 vacating allowance of fees is not appealable].) Therefore, unless the order under section 473, subdivision (b) has the same effect as an order the Probate Code expressly makes appealable, the section 473, subdivision (b) order is nonappealable. (Estate of Estrem (1940) 16 Cal.2d 563, 566; Estate of O’Dea (1940) 15 Cal.2d 637, 638.)
Probate Code section 1300 provides, “In all proceedings governed by this code, an appeal may be taken from the making of, or the refusal to make, any of the following orders: [¶] (a) Directing, authorizing, approving, or confirming the sale, lease, encumbrance, grant of an option, purchase, conveyance, or exchange of property. [¶] (b) Settling an account of a fiduciary. [¶] (c) Authorizing, instructing, or directing a fiduciary, or approving or confirming the acts of a fiduciary. [¶] (d) Directing or allowing payment of a debt, claim, or cost. [¶] (e) Fixing, authorizing, allowing, or directing payment of compensation or expenses of an attorney. [¶] (f) Fixing, directing, authorizing, or allowing payment of the compensation or expenses of a fiduciary. [¶] (g) Surcharging, removing, or discharging a fiduciary. [¶] (h) Transferring the property of the estate to a fiduciary in another jurisdiction. [¶] (i) Allowing or denying a petition of the fiduciary to resign. [¶] (j) Discharging a surety on the bond of a fiduciary. [¶] (k) Adjudicating the merits of a claim made under Part 19 (commencing with Section 850) of Division 2.”
Probate Code section 1303 provides, “With respect to a decedent's estate, the grant or refusal to grant the following orders is appealable: [¶] (a) Granting or revoking letters to a personal representative, except letters of special administration or letters of special administration with general powers. [¶] (b) Admitting a will to probate or revoking the probate of a will. [¶] (c) Setting aside a small estate under Section 6609. [¶] (d) Setting apart a probate homestead or property claimed to be exempt from enforcement of a money judgment. [¶] (e) Granting, modifying, or terminating a family allowance. [¶] (f) Determining heirship, succession, entitlement, or the persons to whom distribution should be made. [¶] (g) Directing distribution of property. [¶] (h) Determining that property passes to, or confirming that property belongs to, the surviving spouse under Section 13656. [¶] (i) Authorizing a personal representative to invest or reinvest surplus money under Section 9732. [¶] (j) Determining whether an action constitutes a contest under Chapter 2 (commencing with Section 21320) of Part 3 of Division 11. [¶] (k) Determining the priority of debts under Chapter 3 (commencing with Section 11440) of Part 9 of Division 7. [¶] (l) Any final order under Chapter 1 (commencing with Section 20100) or Chapter 2 (commencing with Section 20200) of Division 10.”
In the present case, the October 10, 2006 order under section 473, subdivision (b) set aside the May 18, 2006 spousal property order. The order therefore has the effect of restoring Levin’s amended spousal property petition to pending status. Since the order does not have the same effect as any order expressly made appealable by the Probate Code, the order is nonappealable. Because we conclude that the order is nonappealable, we will dismiss the appeal. As the petitioner, Levin has the responsibility of initiating further proceedings in the probate court.
IV. DISPOSITION
The appeal is dismissed. Each party is to bear his own costs on appeal.
WE CONCUR: mcadams, J., duffy, J.