Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BP086759, Mitchell L. Beckloff, Judge.
Greg J. Venturi for Petitioner and Appellant.
Larson & Bawden, Charles A. Larson and Elizabeth A. Bawden; Winston & Strawn, Michael S. Brophy and Robert F. Gookin for Objectors and Respondents.
CHAVEZ, J.
Petitioner and appellant Deborah Brando (appellant) appeals the dismissal of her action against objectors and respondents Avra Douglas, Larry Dressler, and Mike Medavoy (respondents) after the probate court sustained, without leave to amend, respondents’ demurrer to appellant’s first amended petition for probate of will, to set aside final accounting and distribution, and to reopen the probate of a codicil to the will. We affirm the judgment.
BACKGROUND
Respondents are the discharged co-executors of the now closed estate of Marlon Brando (the Estate). Appellant is the former spouse of Christian Brando, the eldest child of Marlon Brando (decedent), and claims to be the assignee of Christian Brando’s rights under decedent’s will.
Decedent died on July 1, 2004. His will, dated August 28, 2002, and a codicil, dated June 18, 2004, were admitted to probate on August 25, 2004. The only beneficiaries named in decedent’s will are Alice Marchak, Blanche Hall, and decedent’s living trust. Although decedent’s will named JoAn Corrales and Alice Marchak as executors of his estate, the codicil substituted respondents as co-executors. The parties agree that the only effect of the codicil was to change the identity of the estate’s executors.
Letters testamentary were issued to respondents as co-executors of the estate on September 2, 2004. The probate court issued an order approving the first account current and report of administration on October 3, 2005. The probate court issued an order approving and settling second and final account on May 7, 2007. Respondents were discharged as co-executors on September 13, 2007.
On September 10, 2007, appellant filed a creditor’s claim with the closed estate. On October 10, 2007, appellant filed her first petition for probate of will, which the probate court subsequently dismissed without prejudice after appellant’s counsel failed to attend a scheduled hearing on that petition.
Christian Brando died on January 26, 2008. On January 28, 2008, appellant filed a second petition for probate of will and to reopen probate of the codicil. In her petition, appellant alleged that she had standing based on “her status as an adult, assignee from Christian Brando, of his rights as beneficiary.” Appellant further alleged that the codicil to decedent’s will was forged.
Respondents demurred to appellant’s petition on the grounds that appellant lacked standing to contest the probate of the will and codicil and that her claims were barred by the 120-day limitations period imposed by Probate Code section 8270. In her opposition to the demurrers, appellant insisted that her status as Christian Brando’s assignee gave her standing to contest the probate and that the alleged forgery of the codicil constituted “extrinsic fraud” that tolled the 120-day limitations period. The probate court sustained respondents’ demurrers but granted appellant leave to amend. In its minute order sustaining the demurrer, the probate court expressly noted that appellant had alleged only intrinsic fraud, not extrinsic fraud, and cited U.S. v. Throckmorton (1878) 98 U.S. 61.
On April 3, 2008, appellant filed a first amended petition for probate of will, to set aside final accounting and distribution, and to reopen probate. In her amended petition, appellant alleged that the following facts constituted extrinsic fraud: “Prior to the probate of the will and Codicil of Marlon Brando, and outside of and prior to the jurisdiction of the Probate Court, Marlon Brando’s signature on the codicil and the amendment to his trust were forged, and he did not sign either document. Said forgery was an illegal felony under Penal Code 470.” Respondents again demurred to the petition on the grounds that appellant lacked standing and that her claims were time-barred. Following a hearing on the matter, the probate court sustained the demurrers without leave to amend. This appeal followed.
DISCUSSION
I. Standard of Review
“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’ [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) The legal sufficiency of the complaint is reviewed de novo. (Montclair Parkowners Ass’n v. City of Montclair (1999) 76 Cal.App.4th 784, 790.) We review the probate court’s order sustaining the demurrers without leave to amend for abuse of discretion. (Estate of Powers (1979) 91 Cal.App.3d 715, 724-725.)
II. Standing
Probate Code section 8270, subdivision (a), provides that “[w]ithin 120 days after a will is admitted to probate, any interested person... may petition the court to revoke the probate of the will.” An “interested person” is one who has “‘“a pecuniary interest in the devolution of the testator’s estate, as would be impaired or defeated by the probate of a will or be benefitted by the setting aside of the will”’” (Estate of Lind (1989)209 Cal.App.3d 1424, 1430-1431), and includes “[a]n heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.” (Prob. Code, § 48, subd. (a)(1).) Only an “interested person” is entitled to contest a will before or after probate. (Estate of Lind, supra, at p. 1430.)
Appellant claims to be an “interested person” with standing to contest decedent’s will and codicil based on her status as an assignee or creditor of Christian Brando. The record shows, however, that Christian Brando had no rights under decedent’s will because he was neither an heir nor a beneficiary under that will. Appellant’s status as an assignee or creditor of Christian Brando accordingly gives her no pecuniary interest in decedent’s estate, and she alleges no pecuniary interest apart from her status as an assignee or creditor. Appellant lacks standing to contest the probate of decedent’s will and codicil. The demurrers to appellant’s petition were properly sustained on that basis.
III. Statute of Limitations
Appellant’s claims are also time-barred under Probate Code section 8270. Subdivision (a) of that statute accords an interested party 120 days to petition for revocation of probate. Decedent’s will and codicil were admitted to probate on August 25, 2004. The period to petition for revocation of probate expired 120 days later, on December 23, 2004. Appellant did not file her petition for probate until October 10, 2007, nearly three years after expiration of the 120-day statutory period. Her petition was thus untimely.
Appellant contends her claims are not time-barred because Probate Code section 8007, subdivision (b), authorizes challenges to a final probate court order premised on “[t]he presence of extrinsic fraud in the procurement of the court order.” She maintains that the probate court’s orders closing the estate and discharging the co-executors were procured through “extrinsic fraud” because decedent’s signature on the codicil was forged.
Probate Code section 8007, subdivision (a) states that “an order admitting a will to probate or appointing a personal representative, when it becomes final, is a conclusive determination of the jurisdiction of the court and cannot be collaterally attacked.” Subdivision (b) of the statute sets forth an exception to the rule of finality in the event there is “extrinsic fraud in the procurement of the court order.”
In its entirety, Probate Code section 8007 states: “(a) Except as provided in subdivision (b), an order admitting a will to probate or appointing a personal representative, when it becomes final, is a conclusive determination of the jurisdiction of the court and cannot be collaterally attacked. [¶] (b) Subdivision (a) does not apply in either of the following cases: [¶] (1) The presence of extrinsic fraud in the procurement of the court order. [¶] (2) The court order is based on the erroneous determination of the decedent’s death.”
Extrinsic fraud, to be a proper basis for relief under Probate Code section 8007, must have prevented the defrauded party from contesting the will. In determining whether such relief is warranted, courts distinguish between extrinsic fraud and intrinsic fraud. Extrinsic fraud is “‘fraud practiced directly upon the party seeking relief against the judgment or decree [such] that [the] party has been prevented from presenting all of his case to the court.’” (Caldwell v. Taylor (1933) 218 Cal. 471, 475-477, quoting United States v. Throckmorton, supra, 98 U.S. at pp. 65-66.) “Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding. [Citation.] Examples of extrinsic fraud are: concealment of the existence of a community property asset, failure to give notice of the action to the other party, and convincing the other party not to obtain counsel because the matter will not proceed (and then it does proceed). [Citation.] The essence of extrinsic fraud is one party’s preventing the other from having his day in court.” (City and County of San Francisco v. Cartagena (1995) 35 Cal.App.4th 1061, 1067.)
“By contrast, fraud is intrinsic and not a valid ground for setting aside a judgment when the party has been given notice of the action and has had an opportunity to present his case and to protect himself from any mistake or fraud of his adversary but has unreasonably neglected to do so. [Citation.] Such a claim of fraud goes to the merits of the prior proceeding which the moving party should have guarded against at the time. Where the defrauded party has failed to take advantage of liberal discovery policies to fully investigate his claim, any fraud is intrinsic fraud. [Citation.]” (City and County of San Francisco v. Cartagena, supra, 35 Cal.App.4th at pp. 1067-1068.) Allegations concerning a forged will constitute intrinsic fraud. (Granzella v. Jargoyhen (1974)43 Cal.App.3d 551, 556.)
Appellant’s allegations concerning the forged codicil constitute intrinsic rather than extrinsic fraud and are insufficient to disturb the finality of the probate proceedings she seeks to reopen. Appellant has failed to suggest how she would amend her petition to correct the defects noted above. The trial court therefore did not abuse its discretion by sustaining the demurrers without leave to amend.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
Although respondents did not file a motion for sanctions, they urge this court to impose sanctions on appellant pursuant to California Rule of Court, rule 8.276 for making a frivolous appeal. We decline to do so.
We concur: BOREN, P. J. ASHMANN-GERST, J.