Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
City & County of San Francisco Super. Ct. No. PES-94-262684
Swager, J.
Appellant Ronald Daley (Ronald) appeals the order requiring his late mother’s estate to pay a $10,000 retainer fee to counsel that represented Gregory O’Keeffe, the administrator of the estate, in connection with Ronald’s fourth appeal, O’Keeffe v. Daley (Apr. 29, 2008, A118233 [nonpub. opn.]) (A118233). We vacate the order.
FACTUAL BACKGROUND AND PROCDURAL HISTORY
This is the sixth appeal arising out of this extraordinarily adversarial estate proceeding. Ronald’s seventh appeal is pending. As we stated in our opinion on Ronald’s last appeal (appeal No. A120213), it is unnecessary for us to detail the factual background of this estate proceeding as the facts are well known to the parties and to this court.
The five prior appeals were O’Keeffe v. Daley (Oct. 11, 2006, A109762 [nonpub. opn.]), the consolidated cases, Estate of Gertrude Daley; O’Keeffe v. Daley (Jan. 7, 2008, A113999, A116232 [nonpub. opn.]), O’Keeffe v. Daley (Apr. 29, 2008, A118233 [nonpub. opn.]), and O’Keeffe v. Daley (Sept. 16, 2008, A120213 [nonpub. opn.]). The court takes judicial notice of these opinions. (See Evid. Code, §§ 452, subd. (d), 459.)
A121671.
On October 17, 2007, O’Keeffe filed a petition seeking an order authorizing the payment of a $25,000 retainer fee to his attorney Daniel A. Conrad for services to be rendered in Ronald’s fourth appeal, appeal number A118233. Copies of the petition were served by mail on Ronald and his sister Carolyn Daley (Carolyn).
In our opinion, we affirmed the probate court’s order approving O’Keeffe’s fourth accounting and status report.
On November 29, 2007, Carolyn filed her objections to O’Keeffe’s petition. Among other issues, she objected based on the fact that O’Keeffe’s moving papers did not include page two of the petition. Ronald did not file an objection in advance of the hearing, which was held on December 4, 2007.
At the hearing, the court stated its tentative ruling, which was to allow $10,000 as a retainer fee. Ronald complained about the petition’s missing page and requested extra time to file his written objections. The court agreed to give him until December 14, 2007. Ronald’s request for a statement of decision was denied.
On December 7, 2007, the probate court inexplicably entered its order authorizing O’Keeffe to pay Conrad the $10,000 retainer. Ronald filed his response and objection to O’Keeffe’s petition on December 14, 2007, as permitted by the court. On December 18, 2007, O’Keeffe executed a notice of entry of the December 7, 2007 order. This appeal followed.
At oral argument Ronald moved to augment the record with a transcript of a hearing held on July 30, 2008, before the probate court. Counsel for the administrator had no objection. The motion was granted and the record has been augmented with this transcript.
DISCUSSION
I. Standard of Review
“Allowance of litigation expenses rests in the sound discretion of the trial court, whose ruling will not be disturbed on appeal absent an abuse.” (Whittlesey v. Aiello (2002) 104 Cal.App.4th 1221, 1230.)
“ ‘ “The term [judicial discretion] implies the absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. [Par.] To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision.” [Fn. omitted.]’ [Citations.]” (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448–1449.)
Under this standard, a “ ‘showing on appeal is wholly insufficient if it presents a state of facts, a consideration of which, for the purpose of judicial action, merely affords an opportunity for a difference of opinion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice . . . .’ [Citation.]” (Estate of Gilkison, supra, 65 Cal.App.4th 1443, 1449.)
II. The Court Abused Its Discretion
This is the second time we have been asked to address the probate court’s actions with respect to Ronald’s evident tendency to file late objections. In appeal number A113999, Ronald and Carolyn filed late objections to three petitions brought by O’Keeffe. (Estate of Gertrude Daley; O’Keeffe v. Daley (Jan. 7, 2008, A113999, A116232 [nonpub. opn.]), at p. 13.) At the hearing on the petitions, the court ordered O’Keeffe to prepare a proposed judgment, but stated that it would allow Ronald and Carolyn the opportunity to request a hearing after they reviewed the proposed orders. Notwithstanding this offer, the court signed the proposed orders on the same day that O’Keeffe submitted them, thereby frustrating any opportunity for Ronald and Carolyn to bring their objections. (Ibid.) While we found the court’s actions to be “somewhat troubling,” we affirmed the orders, in part because Ronald advanced no argument suggesting how he was prejudiced. (Id. at p. 14.)
In the present appeal, Ronald claims that the probate court abused its discretion by failing to adhere to Probate Code section 1046. That section provides that a court “shall hear and determine any matter at issue and any response or objection presented, consider evidence presented, and make appropriate orders.” In his reply brief, he also argues that the court denied him due process. We are constrained to agree.
“Due process principles require reasonable notice and opportunity to be heard before governmental deprivation of a significant property interest.” (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612; Israni v. Superior Court (2001) 88 Cal.App.4th 621, 633, citing U.S. Const., 5th & 14th Amends., Cal. Const., art. I, § 7, Sniadach v. Family Finance Corp. (1969) 395 U.S. 337, 339–342.) “The guarantee of procedural due process—a meaningful opportunity to be heard—is an aspect of the constitutional right of access to the courts for all persons, without regard to the type of relief sought.” (California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 338–339.) “Although ‘due process’ encompasses a broad range of safeguards, in essence the concept guarantees a fundamentally fair decision-making process.” (People v. Ramos (1984) 37 Cal.3d 136, 153.)
O’Keeffe claims that “Since Ronald’s Objection to the Retainer Petition was not properly presented to the Probate Court, the Probate Court did not abuse its discretion by entering the December 7, 2007 Order.” We disagree. While the court may have been under no obligation at the hearing to consider Ronald’s last-minute objection, it effectively continued the matter by giving Ronald until December 14, 2007, to file his papers. Ronald filed his objection on that date. Thus, the objection was properly presented and should have been considered. The court erred in prematurely filing its ruling.
We turn to the issue of whether the court’s error is prejudicial. O’Keeffe notes that Carolyn did file an objection in advance of the hearing that contains many of the same arguments raised by Ronald in his later objection. This fact would support a finding that Ronald suffered no prejudice. However, Ronald’s objection is not identical to the one filed by his sister, being some five pages longer. And while Ronald could have filed a motion for reconsideration, under the circumstances it would have been reasonable for him to believe such a motion would be futile. Moreover, as this is the second time we have been asked to review the probate court’s failure to observe its own continuances without explanation, we decline to hold that the error here was not prejudicial. Accordingly, we conclude that the court’s order granting O’Keeffe’s petition must be vacated.
In closing, we observe that this appeal could easily have been avoided. Ronald could have contacted Conrad’s office to obtain the petition’s missing page well in advance of the December 4, 2007 hearing. By the same token, O’Keeffe or Conrad, knowing that the court had granted Ronald an extension to file his opposition, could have alerted the court to its error when it prematurely signed the order granting the petition. And the court, once it became aware of its error, could have vacated the order on its own motion. Although our entreaties appear to be falling on deaf ears, we again express our dismay at the seemingly endless stream of litigation being generated by this estate and encourage the court and the parties to work towards bringing this proceeding to a merciful end before this estate is entirely consumed by the cost of further litigation.
DISPOSITION
The order is vacated and the matter is remanded to the trial court to reconsider the merits of the petition in accordance with the requirements of Probate Code section 1046.
We express no opinion on the merits of the petition for fees.
We concur: Marchiano, P. J., Margulies, J.