Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. PES-94-262684.
Swager, J.
Appellant Ronald Daley appeals the probate court’s order approving the fourth accounting and status report filed by the administrator of his late mother’s estate.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Prior Appeals
This is the fourth appeal arising out of this protracted estate proceeding. Appellant’s fifth appeal is pending.
The three prior appeals were O’Keeffe v. Daley (Oct. 11, 2006, A109762 [nonpub. opn.]), and the consolidated cases, Estate of Gertrude Daley; O’Keeffe v. Daley (Jan. 7, 2008, A113999, A116232 [nonpub. opn.]). The court takes judicial notice of these opinions. (See Evid. Code, §§ 452, subd. (d), 459.)
A120213.
The factual background of this estate is well known to the parties and this court. “Gertrude [C.] Daley died intestate in March 1994. One year later, the probate court of the San Francisco Superior Court appointed Gregory O’Keeffe to act as administrator of her estate. The decedent’s four children—Ronald, Carolyn, Philip Daley (Philip), and Pamela Keyes (Pamela)—were identified as the heirs at law in the ensuing probate proceeding [citation]. (See Prob. Code, § 6402, subd. (a).)
We summarize the regrettable history of the proceedings relying largely on our nonpublished opinion from the first appeal. Passages from the earlier opinion are set forth in quotation marks.
Further statutory references are to the Probate Code unless otherwise specified.
“These heirs became embroiled in ‘severe disagreement and dissension,’ raising numerous claims against one another. In some instances one or two of the heirs claimed that another heir owed the estate money, offsetting that heir’s share of the estate. In other instances one heir claimed an ownership interest either in personal property found on estate premises or in real property nominally held by the estate. The heirs divided into two camps over most, if not all, of these disputed claims, with Ronald and Carolyn in one and Philip and Pamela in the other. Because of this ongoing sibling conflict, over 10 years have elapsed without any final settlement in the underlying probate proceeding.[ ] [Much of the delay in closing this estate can be attributed to the events surrounding the sale of the decedent’s 25th Avenue property.]
“[¶] . . . [¶]
“In the final weeks of 1996, O’Keeffe published, served, and filed a notice of intent to sell the 25th Avenue property. [Citation.] This notice called for a private sale and requested written, sealed bids that O’Keeffe was to open and consider on January 21, 1997. The notice specified that the 25th Avenue property would be sold ‘on an “as is” basis, except as to title,’ and that the sale would be for ‘all cash, or on terms acceptable to the Administrator and to the Superior Court.’ The notice reserved to ‘[t]he Administrator’ a right ‘to reject any and all bids prior to entry of an order confirming the sale.’
“O’Keeffe conducted the sale as scheduled. The highest bid was from [John and Sandy Tom (the Toms)]. It was in the amount of $456,789 cash and included a check for 10 percent of that amount. O’Keeffe subsequently filed a report with the probate court, indicating his acceptance of the Toms’ bid and seeking confirmation of the sale. [Citation.]
“On February 14, 1997, five days before the scheduled date of the confirmation hearing, Ronald recorded the gift notices that the decedent had executed in favor of Carolyn and himself. [The probate court had determined in February 1996 that these gifts were invalid.]
“At the confirmation hearing on February 19, 1997, Ronald[] proposed to make an overbid for the 25th Avenue property, on behalf of Carolyn and himself. This bid was to be in the amount of $480,128. [Citation.] O’Keeffe explained at the outset of the hearing that he understood the proposed overbid to consist of an offer of cash for one-half of the bid’s amount with the remainder of the amount covered by application of their combined interests in the 25th Avenue property, as two of the four heirs to the estate. O’Keeffe told the court that the other two heirs, Philip and Pamela, had ‘indicat[ed] that they ha[d] claims against Ronald.’ According to O’Keeffe, the probate court in earlier proceedings had deferred decision on some of these claims, while others had been communicated to him but had not yet been presented to the court. O’Keeffe stated ‘it would be awkward’ for him to accept the overbid under these circumstances, and he thought the claims required judicial resolution before he could accept a bid that ‘include[d] a distribution.’ ” (O’Keeffe v. Daley, supra, A109762, at pp. 2–4.)
Several years passed before the sale was finalized.
“[S]ometime in 2002, O’Keeffe and the heirs discussed a ‘recommendation’—apparently from the arbitrator—that they submit some of the disputed issues to the civil department of the superior court by way of a complaint for declaratory relief. It appears that the parties to the probate proceeding agreed to this approach, and that the probate court itself ‘directed’ O’Keeffe to file such a complaint.
“On March 14, 2003, over six years after the February 1997 confirmation hearing, O’Keeffe filed a complaint for declaratory relief on behalf of the estate. The complaint named the four heirs and the Toms as defendants. It alleged the sale of the 25th Avenue property to the Toms and its confirmation by the probate court. It alleged the estate’s inability to complete the sale by conveying clear title, because of gift notices recorded by Ronald and Carolyn. The validity of the gift notices, according to the complaint, was ‘[a]t issue.’ Finally, it alleged Ronald was claiming he had been ‘prevented from increasing the bid’ on the 25th Avenue property at the February 1997 confirmation hearing. The prayer was for an order ‘determining the rights of the parties as to the sale of [the 25th Avenue] property,’ and the ‘interest’ of Ronald, Carolyn, and all other parties in that property.”
“[¶] . . . [¶]
“In early October 2004, the trial court commenced an 11-day bench trial of the declaratory relief action. O’Keeffe’s position, as disclosed by his trial brief, was that the gift notices recorded by Ronald and Carolyn were invalid and should be expunged. He also argued he had properly rejected the proposed overbid made by Ronald and Carolyn, as it had not been an all-cash bid. On the other hand, O’Keeffe sought for the first time to disaffirm the estate’s sale of the 25th Avenue property to the Toms. He argued the court should not confirm that sale, because the Toms had not timely pursued their rights as purchasers. Moreover, since the property had greatly appreciated in value,[] it was in the best interest of the estate to conduct a new sale. (O’Keeffe v. Daley, supra, A109762, at pp. 8–9.)
“In its judgment, the court confirmed the sale of the 25th Avenue property to the Toms pursuant to the petition for confirmation filed by O’Keeffe in January 1997. It further directed that the estate was to retain both the rental income from that property and the interest from the Toms’ deposit. The court additionally ‘use[d] its equitable powers . . . to determine the total debt owe[d] to the estate’ by Ronald. It ruled that Ronald owed the estate $114,197 ‘for decreased value in the estate.’ Noting that this amount was equal to one-fourth of the confirmed sale price, the court ordered that Ronald’s one-fourth share of these proceeds was to be applied to extinguish the debt to the estate. With respect to this determination, the court’s intent was to ‘curtail[] and render[] moot any other litigation concerning the amount of [Ronald’s] debt to the estate’ either in the probate proceeding or any other proceeding.” (O’Keeffe v. Daley, supra, A109762, at pp. 19–20.)
In the first appeal, O’Keeffe argued that the sale to the Toms should be confirmed and the damage award against Ronald upheld. O’Keeffe also asserted that the awards to the estate of rental income and of interest on the Toms’ deposit should be confirmed. We upheld the sale of the 25th Avenue property to the Toms, and reversed the judgment against Ronald for his alleged debt to the estate.
In the second appeal, we sustained the probate court’s order requiring the estate to pay attorney fees for counsel that represented O’Keeffe in the first appeal. In the third appeal (which we consolidated with the second appeal) we affirmed three other court orders contested by Ronald.
II. Order Approving Fourth Accounting and Report
On August 31, 2006, O’Keeffe filed a petition for approval of the fourth accounting and status report. On October 2, 2006, Ronald filed an objection to the accounting. On October 3, 2006, Ronald filed a request for a statement of decision. That same day, the court held a hearing on the petition. At the hearing, Ronald asked the court to hold an evidentiary hearing to establish the reason why the estate proceedings had remained unresolved for so many years. The court took the matter under submission.
On November 28, 2006, the court filed a proposed statement of decision approving O’Keeffe’s petition and denying an evidentiary hearing. Citing to the invalid gift notices that had been filed on the 25th Avenue property in 1997, the court declared that Carolyn and Ronald “are the primary cause of the lack of closure.” On December 15, 2006, Ronald filed an objection and again requested an evidentiary hearing. The court granted Ronald’s request and the hearing was held on February 2, 2007.
On March 23, 2007, the court issued its statement of decision. On April 5, 2007, the court issued its order approving O’Keeffe’s accounting and status report. This appeal followed.
DISCUSSION
I. Standard of Review
Our review is guided by the following: “California appellate courts are generally constrained by three principles of appellate review: First, the trial court’s judgment is presumptively correct, such that error must be affirmatively demonstrated, and where the record is silent the reviewing court will indulge all reasonable inferences in support of the judgment. [Citations.] This means that an appellant must do more than assert error and leave it to the appellate court to search the record and the law books to test his claim. The appellant must present an adequate argument including citations to supporting authorities and to relevant portions of the record. [Citations.] Of course this also means that during trial, the parties must ensure that an adequate record is made of errors by which they are or may be aggrieved; ordinarily, errors not reflected in the trial record will not, and indeed cannot, sustain a reversal on appeal.” (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556–557 (Yield Dynamics).)
“Second, findings must be sustained if they are supported by substantial evidence, even though the evidence could also have justified contrary findings. [Citations.] When combined with the foregoing principle this means that an appellant who challenges a factual determination in the trial court—a jury verdict, or a finding by the judge in a nonjury trial—must marshal all of the record evidence relevant to the point in question and affirmatively demonstrate its insufficiency to sustain the challenged finding. (Yield Dynamics, supra, 154 Cal.App.4th 547, 557.)
“Third, even if error is demonstrated it will rarely warrant reversal unless it appears ‘reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ [Citations.] This means the appellant must show not only that error occurred but that it is likely to have affected the outcome.” (Yield Dynamics, supra, 154 Cal.App.4th 547, 557.)
In his reply brief, Ronald claims that the substantial evidence standard of review is inapplicable because “There is no evidence to support [O’Keeffe’s] positions.” We disagree with Ronald, and apply the principles of appellate review as set forth above that we are required to follow.
II. The Probate Court did not Err in Approving the Fourth Accounting and Status Report
Ronald asks us to vacate or reverse the order and order the probate court to make new findings of fact. His appeal is puzzling because while he complains bitterly about the language in the probate court’s statement of decision, he advances almost no substantive challenge to the order itself. He complains that O’Keeffe has “misdirect[ed] a willing Probate Court as to the reasons for delay in settlement [of the estate]” by improperly attributing the delay to “conflicts between her children, the four heirs-at law.” He also claims that none of the status reports prepared by O’Keeffe, going as far back as April 9, 1996, have been in compliance with the requirements of section 12201. As best we can discern, it appears that Ronald is attempting to challenge the validity of the entire probate proceeding via this appeal. The scope of our review, however, is limited to the order that issued on April 5, 2007.
A. Estate of Justesen (1999) 77 Cal.App.4th 352 (Justesen) is not on Point
Ronald cites to Justesen in support of his recurring claim that O’Keeffe has unreasonably delayed resolving the estate. Justesen involved an appeal of an order denying a petition to determine entitlement to distribution. (§ 11700.) The decedent died on April 24, 1996, leaving one-half of her estate to Sue Sedlak with the condition Sedlak was living at the time of distribution. The decedent’s will further provided if Sedlak did not survive distribution, her share would go to George Wasson, the co-beneficiary. When Sedlak died on February 7, 1998, almost two years later, the estate had not yet been distributed. Sedlak’s estate filed an appeal from an order denying her petition for distribution, alleging “unreasonable delays had occurred in the routine administration of the estate and therefore Sedlak’s 50 percent share of the estate should be deemed to have vested before her death.” (Justesen, supra, 77 Cal.App.4th 352, 357.)
The court in Justesen determined that the applicable one-year period to petition for an order for final distribution had expired more than six months before Sedlak’s death. (Justesen, supra, 77 Cal.App.4th 352, 360.) The court then held that when the moving party claiming entitlement to distribution based on unreasonable delay makes a showing the personal representative has exceeded the statutory time period to file an inventory and appraisal, the burden shifts to the personal representative to establish that additional time is reasonable under the circumstances. (Id. at p. 361.) The court concluded there had been an unreasonable delay in that the personal representative had taken nine months longer than the statutory four-month period to file the inventory and appraisal (see § 8800, subd. (b)) during which time she was merely attempting to locate a few items of personal property to create a more perfect inventory even though she was aware of the beneficiary’s failing health. (Justesen, supra, at pp. 362–363.)
We observe that “An appellate decision is not authority for everything said in the court’s opinion but only ‘for the points actually involved and actually decided.’ [Citations.]” (Santisas v. Goodin (1998) 17 Cal.4th 599, 620.) In Justesen, the point “actually involved and actually decided” was whether contingent interests in an estate vest at the time an estate is actually distributed, or at the time it should have been distributed. The case did not present an issue concerning the filing of accounting and status reports. Accordingly, the shifting burden of proof that the court set forth in Justesen has no application to the order that is the subject of the present appeal. While we fully agree with the court’s emphasis on the need to resolve estate proceedings in a timely manner, there is nothing in the opinion that would lead us to conclude the trial court in the present case erred in entering its order approving O’Keeffe’s fourth accounting and status report.
Relying on Justesen, Ronald asserts “It is indisputable that Mr. O’Keeffe has exceeded the statutory time period [set out in section 12200, subdivision (b)] for distribution hence the burden shifts to Mr. O’Keeffe to establish with evidence as opposed to rhetoric that the additional time he has taken in administering this Estate is reasonable, necessary and beyond his control.” Ronald is mistaken. Even if Justesen does apply to the present case, the statutory time period set forth in section 12200, subdivision (b), has not been exceeded.
Section 12200, subdivision (b), provides that, in an estate (like the present one) for which a federal estate tax return must be filed, “The personal representative shall either petition for an order for final distribution of the estate or make a report of status of administration not later than the following times: . . . In an estate for which a federal estate tax return is required, within 18 months after the date of issuance of letters.” (Italics added.) Ronald does not claim that O’Keeffe failed to meet the 18-month deadline for submitting his first status report. Instead, he appears to be arguing that O’Keeffe has violated this provision by not filing a petition for an order for final distribution within the 18-month period. Yet the statute clearly lists either course of action as a permissible alternative. Accordingly, Ronald’s reliance on Justesen is entirely misplaced.
B. Compliance with Section 12201
As to Ronald’s claim that none of the status reports filed by O’Keeffe have complied with section 12201, we observe that the time limit for bringing an appeal regarding status reports that were filed prior to the one at issue in the present case has expired. Accordingly, we need not consider Ronald’s allegations with respect to the earlier status reports.
The August 31, 2006 status report is in compliance with section 12201. This section provides that, if the executor makes a status report rather than filing a petition for final distribution, “The report shall show the condition of the estate, the reasons why the estate cannot be distributed and closed, and an estimate of the time needed to close administration of the estate.” (§ 12201, subd. (a).) Following a hearing on the report, the court, if it does not direct the executor to petition for final distribution, may order “That the administration of the estate continue for a time and on the terms and conditions that appear reasonable, . . . if the court determines that continuation of administration is in the best interests of the estate or of interested persons.” (§ 12201, subd. (c)(1).)
Ronald also complains that none of O’Keeffe’s status reports have included a statement substantially similar to the following words: “YOU HAVE THE RIGHT TO PETITION FOR AN ACCOUNT UNDER SECTION 10950 OF THE CALIFORNIA PROBATE CODE.” That statement, however, applies to the notice of the hearing on the report, not to the report itself. (§ 12201, subd. (b).) He has made no argument that any failure to include the mandated statement in the required form has caused him any prejudice.
O’Keeffe’s report sets forth the status and condition of the estate, as well as the reasons why the estate cannot yet be distributed or closed. While it does not provide an estimate of the time needed to close the estate, it does note two pending matters: Ronald’s appeal in case number A113999 and a petition for approval of payment of legal fees to O’Keeffe’s litigation counsel (which subsequently lead to the appeal in case number A116232). As those matters were unresolved when O’Keeffe filed his report, it would have been speculative and unreasonable for him to project a date on which the estate would close. The litigation that this estate has spawned and Ronald’s statements at oral argument concerning future appeals manifest the difficulties in attempting to provide an estimate of the time needed to close this estate.
C. The Probate Court’s Findings are Supported by Substantial Evidence
As noted above, while Ronald purports to be appealing the court’s order entered on April 5, 2007, he does not raise any substantive challenge to the order. For example, he does not challenge the court’s approval of the transactions made by O’Keeffe on behalf of the estate. Nor does he contest the compensation that the court awarded to O’Keeffe. As best we can discern, his sole challenge is directed at the findings in the court’s statement of decision that “all heirs are responsible for the delay in closing estate administration” and that O’Keeffe is not the “primary” cause of the delay. The thrust of Ronald’s briefing, which he made clear at oral argument, is that it is O’Keeffe, and not the heirs, who is responsible. As evidence in support of this contention, he points to the long delay in selling the 25th Avenue property and to Phillip’s failure to remove personal property from the decedent’s residence.
We note that Ronald does not explain how these two events relate to the substance of the court’s order approving the fourth accounting and status report.
During the evidentiary hearing, O’Keeffe presented credible evidence supporting the court’s ultimate findings on the issue of delay. For example, he detailed the history of his efforts to resolve ownership of the real property located at 45 Cerritos. In brief, he testified the heirs initially agreed that ownership of the property would be transferred to Ronald. Phillip and Pamela, however, subsequently changed their minds, causing the property to remain in the estate. He also went over the history of the delayed transfer of the 25th Avenue property, testifying that much of the delay was caused by Ronald and Carolyn’s failure to take legal action to vacate the sale to the Toms. Delay was also caused by Phillip’s refusal to participate in mediation. O’Keeffe did admit that he “dragged this out,” but stated that the reason he did so was to avoid taking action contrary to the interests of any of the heirs.
Moreover, the finding that the heirs are responsible for the delay in closing the administration is also supported by the evidence upon which Ronald relies. In addition to the factors testified to by O’Keeffe, the failure to sell the 25th Avenue property in a timely manner can be attributed, in part, to Ronald and Carolyn’s recording of the invalid gift notices. Similarly, Phillip’s failure to remove the property from his mother’s house must be attributable, in large part, to Phillip. Ronald’s negative feelings towards O’Keeffe and his disagreement with the decisions of the probate court and this court, do not transform his unmeritorious arguments into legally supportable arguments justifying reversal on appeal.
III. The Statement of Decision
Ronald also claims that the probate court’s statement of decision does not meet the requirements of Code of Civil Procedure section 632 and California Rules of Court, former rule 232 (now numbered rule 3.1590). In spite of the fact that the court held an evidentiary hearing on the issue of delay and issued a 13-page statement of decision, Ronald claims “There was no resolve in the form of conclusions arrived at by the court.” To the contrary, the court’s statement of decision found both that O’Keeffe “is not the primary cause of this estate not being brought to a close” and that “all heirs are responsible for the delay in closing estate administration.” Ronald claims, in conclusory fashion, that the court’s statement is not responsive to his request for a statement of decision. He fails, however, to set forth any language in his request to which he claims the court failed to respond.
Code of Civil Procedure section 632, provides, in part: “In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. . . . The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. After a party has requested the statement, any party may make proposals as to the content of the statement of decision.”
Ronald’s reply brief does raise at least two specific points that he claims he made in his request but that the court failed to address in its statement of decision: 1) O’Keeffe’s conduct in returning money owed to Carolyn, and 2) the return of funds awarded to O’Keeffe as partial compensation. The court did, in fact, address those issues. Moreover, “The trial court is not required to make an express finding of fact on every factual matter controverted at trial, where the statement of decision sufficiently disposes of all the basic issues in the case.” (Bauer v. Bauer (1996) 46 Cal.App.4th 1106, 1118.)
Our review of both Ronald’s request and the court’s statement demonstrates to us that the court was amply responsive. The statement provides detailed findings on the complexity of the issues involved in this estate proceeding, and sets forth evidence of how the actions of the heirs have contributed to the delay in closing this estate.
Finally, as we noted at the outset, this is the fourth appeal that we have seen in this case. As we read Ronald’s briefs, it appears that the primary focus of the present appeal is on assigning blame to others for conduct that has already occurred, as opposed to resolving an actual legal dispute. Rather than focusing on prior events and transactions that cannot be undone, the parties should direct their attention towards moving forward and concluding this estate proceeding as quickly as possible.
DISPOSITION
The order is affirmed.
We concur: Marchiano, P. J., Stein, J.