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Estate of Diniz

Court of Appeals of California, Sixth Appellate District.
Nov 25, 2003
No. H024947 (Cal. Ct. App. Nov. 25, 2003)

Opinion

H024947. H025155.

11-25-2003

Estate of ELMIRO CAETANO DINIZ, Deceased. JORGE DINIZ, Petitioner and Respondent, v. JOHN C. DINIZ, Objector and Appellant.


In this probate proceeding, competing petitions were brought by two brothers to adjudicate claims to property of their fathers estate. John Diniz (John) appeals from an order denying his petition and granting the petition of his brother, Jorge Diniz (Jorge), and ordering John to pay the sum of $307,310 to the estate of their father, Elmiro Diniz. After this order was entered both brothers filed petitions to be appointed as the personal representative of the estate. Jorge sought letters of administration and John resubmitted a will and sought probate of the will and letters testamentary. The court granted Jorges petition, ruled that the matter would proceed intestate, and appointed Jorge to be the administrator of Elmiros estate. John filed successive appeals from these two orders.

We will refer to the parties by their first names for purposes of clarity and brevity, intending no disrespect.

By order dated February 14, 2003, we denied a motion for formal consolidation of the two appeals, but ordered that they be consolidated for the limited purposes of briefing, oral argument, and decision.

In regard to the order granting Jorges petition to adjudicate property claims, John makes several arguments: 1) the court erred in deciding claims not raised in the pleadings; 2) the court erred in doubling damages under Probate Code section 859; 3) he had a right to a jury trial; 4) the court erred in awarding damages representing losses to the estate of Elmiros spouse, who had predeceased him; 5) the court erred in characterizing a check from Elmiro to John as an asset removed from the estate. In regard to the order granting Jorges petition for letters of administration, John argues that the court erred in determining that he could not resubmit Elmiros will to probate.

We reject all of these contentions and we will affirm the orders appealed from.

HISTORY OF THE CASE

Elmiro Diniz died on May 28, 2001. His wife Georgina had died on February 23, 2001. They were survived by two sons, John and Jorge.

Following Elmiros death, Jorge filed a petition in probate court for letters of administration, and John filed a petition to probate a will dated January 17, 2001. Jorge contested the will.

Disputes developed regarding the apparent disappearance of items of personal property from Elmiro and Georginas home on Park Court in Santa Clara. There was also an ongoing lawsuit between Jorge and the parents regarding title to the home itself. In June of 2001, the brothers entered into a stipulation that neither one would enter the property or give anyone else permission to enter the property. A special administrator was appointed on August 14, 2001. Superior Court Judge Catherine Gallagher presided over the early hearings in this matter.

On November 30, 2001, Jorge filed a petition to adjudicate claims to the personal property of the estate. He also filed an application for a temporary restraining order and preliminary injunction, asserting that property had been removed from the Park Court home. Judge Gallagher issued the temporary restraining order and an order to show cause. Pending a hearing on the order to show cause, the judge ordered John to deliver to the special administrator any items of personal property taken from the home after Elmiros death. A handwritten notation on the temporary restraining order stated "[t]he will of Elmiro Diniz that was submitted for probate is withdrawn. The estate is to proceed by intestate succession."

On January 31, 2002, John filed his petition to adjudicate adverse claims to property and an application for preliminary injunction. He contended that Jorge had been removing property from the Park Court home since Elmiros death and he sought an order that Jorge return the property to the special administrator of the estate.

On April 26, 2002, the brothers entered into a stipulation to settle and dismiss the lawsuit regarding title to the real property on Park Court. They agreed to participate in a bidding process in open court, by which the high bidder of the two brothers would be entitled to purchase the one-half interest of the other brother. The bidding proceeding took place in court on May 30, 2002, supervised by a probate examiner. This resulted in John purchasing Jorges one-half interest in the real property.

Following the bidding procedure, the hearing on the competing petitions to adjudicate claims to the personal property then commenced, presided over by Superior Court Judge Leslie Nichols. The hearing continued over four days. The evidence was in sharp conflict. Each brother presented a case that the other had removed property from the home following Elmiros death. John, who owned an antique business nearby, contended that much of the furniture and personal property in the home had been purchased by him for his business and was simply stored at his parents home. Jorge, who lived with his family in Florida, claimed that he had given expensive jewelry to his parents over the years and that it was now missing. John contended they never had any such jewelry. There was also conflicting evidence as to cash kept by Elmiro at the house. The trial concluded on June 4, 2002, and the parties submitted post-trial briefs.

Judge Nichols issued a lengthy statement of decision on June 18, 2002, summarizing the evidence and explaining the issues and the courts decision. The court found that John had removed the personal property from the home, and found that the items in the home were owned by Elmiro and Georgina Diniz and not by John. The court found that Jorge was entitled to an order directing John to pay twice the value of the missing property to the estate of Elmiro, pursuant to Probate Code section 859. The assets taken were valued at a total of $153,655. Therefore the court ordered John to pay to the estate $307,310. The order was entered June 25, 2002.

John filed a motion to reconsider, which was denied by Judge Nichols on August 1, 2002.

On July 19, 2002, Jorge filed a petition to administer the estate and to have himself appointed administrator. On August 8, 2002, John filed a petition to probate the will and name himself executor. Each opposed the others petition and both petitions were heard together on October 3, 2002, back before Judge Gallagher. Judge Gallagher ruled that the matter would proceed intestate, and appointed Jorge administrator of the estate. The courts order and the letters of administration were issued on October 4, 2002.

John has appealed Judge Nicholss June 25, 2002 order and Judge Gallagers October 4, 2002 order.

ISSUES

The Award of Damages

John argues that the court had no authority to adjudicate and award money damages because damages were not sought in the petition filed by Jorge. John contends that Jorge sought only injunctive relief, namely the return of the items of personal property allegedly removed from the Park Court home after the death of Elmiro. Although the petition prayed for injunctive relief, in the form of the return of property to the estate, it is apparent from the allegations of the petition that the actual personal property might not be recoverable, and that Jorge was seeking to have the items or amounts representing their value returned to the estate. The petition contained allegations as to the value of certain items of missing personal property. And in his trial brief Jorge explained that he had hired a professional appraiser to value other items that had been removed from the home, and that the appraiser would testify at trial as to the value of the missing items. Attached to the petition was a lengthy appraisal estimating the fair market value of 50 numbered and identified items, based on photographic evidence that these items had been in the home immediately following the death of Elmiro and were now missing. The appraiser included a declaration stating in part that he had seen several of these items for sale at Johns antique business.

We believe the pleadings adequately informed the parties that the value of the missing items would be an issue at trial and that the only appropriate remedy if the items could not be recovered would be to reimburse the estate in damages representing their fair market value. "It is a time honored rule that where the parties and the court proceed throughout the trial upon a theory that a certain issue is presented for adjudication, the doctrine of estoppel precludes either party from thereafter asserting that no such issue was in controversy, even though it was not actually raised by the pleadings. [Citations.]" (People v. Nahabedian (1959) 171 Cal.App.2d 302, 306.)

John did not object at trial when evidence was submitted regarding values of the missing pieces of personal property. Nor did he argue in his motion for reconsideration that there were any discrepancies between pleading and proof. Since each side contended that the other had taken the property, and the property was not recovered, the only resolution possible was to compensate the estate with money damages. At the hearing on Johns motion for reconsideration, the court recapped that at trial each side had been "asking for the maximum amount of dollars." Under the circumstances we find that John was not misled or prejudiced by the pleadings and that the court had authority to make an award of money damages to the estate representing the value of missing property.

Double Damages Under Probate Code Section 859

Jorges petition for adjudication of claims was filed on November 30, 2001, under former Probate Code section 9860. At that time, under former section 9869, only a personal representative of the estate could recover double damages from a transgressor. Effective January 1, 2002, section 9860 became section 850 and section 9869 became section 859. (See Stats. 2001, ch. 49, § 1.) Under section 859 a successor in interest to the decedent can bring an action to recover double damages for the estate. Section 859 provides: "If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to the estate of a decedent, . . . the person shall be liable for twice the value of the property recovered by an action under this part. The remedy provided in this section shall be in addition to any other remedies available in law to a trustee, guardian or conservator, or personal representative or other successor in interest of a decedent."

All further unspecified statutory references are to the Probate Code.

John argues that the court erred in applying section 859 to award double damages on the petition brought by Jorge, who was an interested party but not a personal representative, because Jorges petition was filed prior to the statutes effective date. We disagree, for several reasons. Section 3 of the Probate Code provides for general rules of application of "new law" or "old law" where there have been changes in the statutes. "[A] new law applies on the operative date to all matters governed by the new law, regardless of whether an event occurred or circumstances existed before, on, or after the operative date, including, but not limited to, . . . death of a person, commencement of a proceeding, making of an order, or taking of an action." (§ 3, subd. (c).) If a petition is filed before the operative date of the new law, "any subsequent proceedings taken after the operative date concerning the petition, . . . including an objection or response, a hearing, an order, or other matter relating thereto is governed by the new law and not by the old law." (§ 3, subd. (d).) Notwithstanding these provisions, section 3, subdivision (h), gives the court discretion to apply the new law or the old law if necessary to mitigate substantial interference "with the effective conduct of the proceedings."

Here the courts application of the new law, in the form of section 859, was consistent with these rules. Furthermore, the court clearly informed the parties of its intention to apply section 859. At the beginning of day two of the trial the court stated: "you know the probate code provides a penalty if someone acts willfully to provide for double the value to be paid to somebody." The court further explained, "once I decide ownership, I have to decide did somebody do something wrongful that brought in this penalty." In regard to an award of money damages, the court told the parties he would "double it," and he asked the parties and counsel to carefully consider this so that there would be no complaints when the decision was rendered. It was thus clear to the parties that section 859 would apply. No objection was raised during trial, in Johns post-trial brief, or in his motion for reconsideration.

The record fully supports the courts application of section 859 to the proceedings here. Although Jorges petition to adjudicate claims to property was filed a month before the new statute came into effect, Johns petition, which contained substantially the same allegations, was filed on January 31, 2002, after the effective date of section 859. The trial court heard the competing petitions together and section 859 was in effect during the entire trial of this matter in May and June of 2002. Applying the currently effective version of the statute to one petition and an outdated version to the other petition would have resulted in "substantial interference" with the proceedings, treating the brothers claims differently without any rational basis. (§ 3, subd. (h).) Furthermore, at the time of the trial on the competing petitions, there was no personal representative of the estate who could have brought the action to recover the missing property. The special administrator had resigned and no other personal representative had been appointed. We find no error or abuse of discretion in the courts decision to apply the new law to the proceedings.

Right to a Jury Trial

John argues that because the issues as tried were essentially tort claims with money damages at stake, he had a constitutional right to a jury trial. (Cal. Const., art I, § 16.) Section 825 sets forth the general rule that "[e]xcept as otherwise expressly provided in this code, there is no right to a jury trial in proceedings under this code." (See also, Estate of Beach (1975) 15 Cal.3d 623, 642.) Sections 850 through 859 do not specifically provide for a jury trial in a contested proceeding to recover property of the estate. Section 855 provides that an action to recover property "may include claims, causes of action, or matters that are normally raised in a civil action . . . ." And section 856.5 states that "[t]he court may not grant a petition under this chapter if the court determines that the matter should be determined by a civil action." It thus appears that the right to a jury trial depends on the nature of the claims and is to be determined by the court. Under relevant caselaw, the right arises when the "gist" of the action is legal and requires resolution of factual issues. (See, Estate of Phelps (1990) 223 Cal.App.3d 332, 338-339; Walton v. Walton (1995) 31 Cal.App.4th 277, 287.)

The fact that the court proceeded under section 859, rather than former section 9860, did not automatically entitle John to a jury trial, as he contends, since both of these statutes provide for damages twice the value of property willfully taken from the estate. What is determinative here, however, is that John did not request a jury trial or raise the issue for the court to decide whether the gist of the action was legal. He claims he was led to believe by the pleadings that the action was limited to injunctive relief. As we have discussed, however, it was apparent that if the property allegedly taken from the estate could not be recovered, the only remedy available was damages. A request for a jury trial of a probate matter must be made within a reasonable time preceding the hearing date. (Heiser v. Superior Court (1979) 88 Cal.App.3d 276, 281.) The court is under no duty, as John suggests, to inquire whether or not the parties in a contested probate action wish to proceed by jury trial. John argues that he did not waive his right to a jury trial because there can be no waiver by implication. (Cohill v. Nationwide Auto Service (1993) 16 Cal.App.4th 696.) A right to a jury trial is waived, however, by failing to timely request it or failing to deposit the appropriate fees. (Code Civ. Proc., § 631, subd. (d);Estate of Bell (1943) 58 Cal.App.2d 333.)

Damages Attributable to the Predeceased Spouses Estate

John argues that the court erred in awarding to the estate of Elmiro damages representing missing property that had been owned by Elmiros wife Georgina. The disposition of Georginas property depends on whether it was owned as community property with Elmiro or as her separate property, and whether she died testate or intestate. If she died with separate property and did not have a will, only one-third of this property would pass to her surviving spouse and the other two-thirds would go to her two sons. (§ 6401, subd. (c)(3).) However, none of these issues were raised or developed at the contested proceeding on this matter. As John acknowledges, "[w]e do not know if GEORGINA died testate or intestate." If John claims that only a portion of Georginas separate property passed to her spouse upon her death under the laws of intestate succession, it was incumbent on him to present this claim, and evidence supporting it, for decision by the trial court.

John contends that the issue can be decided as a matter of law because the trial court found the jewelry was Georginas separate property and thus erred in assigning its entire value to Elmiros estate. Even assuming that Georgina died intestate, which was not shown in the record, John overstates the courts findings regarding the character of this property. There was no finding that the jewelry was Georginas separate property. The court found that there was conflicting testimony regarding the jewelry, but determined that it had originally been given to Georgina by Jorge "approximately twenty (20) years ago." The court further found, however, that the weight of the evidence in this case supported the conclusion "that the items found in the home belong to the decedent [Elmiro]." The court noted there was "a strong logical presumption that the contents of ones home belongs to the owner/occupant." It found "that there were several pieces of valuable jewelry found in the home of ELMIRO DINIZ at the time of his death and that these have been wrongfully removed and concealed by JOHN." Thus the courts findings supported a conclusion that the jewelry initially given to Georgina had been transmuted over the years to community property, or may have been given or left by her to Elmiro. In any event, the court found that the jewelry was in Elmiros home when he died and that there was evidence supporting the presumption that property in his home when he died was his. On this record we find no error.

The Check for $5,050

In evidence was a check for $5,050 made out to John on Elmiro and Georginas bank account. It was dated May 21, 2001, seven days before Elmiro died. John cashed it on July 2, 2001. John argues that the court erred in including this $5,050 in the damages to be repaid by him to the estate. He contends there was no evidence to support a finding that this was not a valid check given to John by Elmiro before he died.

There was indeed very little evidence regarding this check. Apparently it was discovered by the special administrator that John had cashed a check on Elmiros account on July 2, 2001. There was no explanation provided by John as to what the amount of $5,050 represented. Johns testimony about the check was vague and inconsistent. He said it was basically a gift to him because his father did not get along with his brother: "Since my parents and my brother Jorge Diniz were constantly feuding, and the civil lawsuit was pending, my father gave me his money, and trusted me with all his belongings and financial affairs." He stated that his father gave the check to him, along with other gifts of money, "because he [Elmiro] didnt want my brother to put hands on the money." However, John later testified that there was no money in his fathers account to cover the check when his father died and that is why he did not cash the check until July. At another point he testified that "the money was for the funerals." However the will submitted by John specifically provided for the payment to him of a certain sum of money to cover funeral expenses.

In his statement of decision, Judge Nichols wrote: "Johns credibility is to be questioned . . . ." The judge noted inconsistencies in his testimony, and found that "his testimony [] conflicted with a number of other witnesses." The judge was entitled to conclude that the check for $5,050 did not represent a legitimate transaction, based on Johns inability to account for it and his lack of credibility in general in regard to other property of the estate that the court found had been concealed by him. Judge Nichols found that on the whole "[t]he evidence strongly supports a finding of concealment" of listed items, including property, collectibles, jewelry, cash kept at the house, and the $5,050.

Our standard of review here is controlling. On appeal we defer to the trial courts factual findings and in particular its determinations regarding credibility. (Hicks v. Reis (1943) 21 Cal.2d 654; 659.) The trial court is free to disbelieve and to reject the testimony of witness even though it is uncontradicted. (Lohman v. Lohman (1946) 29 Cal.2d 144, 149.) Furthermore, a court may disregard testimony of a witness it finds inherently implausible or not credible. (See, e.g., Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 254.) As the court observed at the motion for rehearing in this case, "this is a classic credibility issue." Having reviewed the entire record we find it supports the courts finding that John wrongfully removed the amount of $5,050 from Elmiros estate.

Withdrawal of the Will

Following Judge Nicholss order on June 25, 2002 adjudicating the brothers competing claims to property of the estate, Jorge filed a petition for letters of administration, and to have himself appointed as administrator of the estate. On August 2, 2002, John responded with a petition to probate a will and to have himself appointed executor of Elmiros estate. This was the same will that had been submitted for probate by John the previous year, on June 26, 2001. The will provided among other things that John was to have all of Elmiros property and that Jorge was to have $1. When John first submitted the will in 2001, Jorge immediately filed a will contest, to which there was no response. After the relevant time period, Jorge sought to have default entered. No formal default was entered; however, when Judge Gallagher issued a temporary restraining order on November 30, 2001, the order contained a handwritten notation that "[t]he will of Elmiro Diniz that was submitted for probate is withdrawn. The estate is to proceed by intestate succession." This notation was initialed by both counsel and signed "So ordered" by the Judge Gallagher.

When John sought to resubmit the will to probate in August of 2002, Jorge objected on the basis that there had been an agreement in November of 2001 to withdraw the will. John argued that he was entitled to resubmit the will because there had been no order of the court finding it to be invalid or defective. Judge Gallagher heard this matter, along with Jorges petition for letters of administration, on October 3, 2002. On October 4, 2002, the judge ordered Jorge appointed administrator of the intestate estate of Elmiro and also appointed a probate referee to fix the value of the property of the estate.

Although no trial was held on the will contest, Judge Nichols noted that the will contained some peculiarities. He wrote in his statement of decision: "Of primary importance in judging JOHNs credibility is the Petition for Probate of Will signed by JOHN under penalty of perjury and submitted to the Court. With that Petition he sought to have the Court admit to probate a Will that was altered or the product of fraud. The Will contained a statement of the decedent that he was a widow. His wife did not die for several weeks after the Will was executed. The Will references six (6) pages and only five (5) are produced in the Will attached to the Petition. The pagination is not consistent. The Will provides for an [sic] very unnatural disposition of the decedents assets — it excludes one (1) of his two (2) adult children."

In appeal No. H025155, John argues that Judge Gallagher erred in refusing to allow him to resubmit the will. He contends the handwritten notation on the temporary restraining order in 2001 did not preclude resubmitting the will at a later date, and that any agreement regarding withdrawing the will expired when the temporary restraining order expired. We reject this contention. Judge Gallagher, the same judge who presided over the parties agreement to withdraw the will in 2001, heard arguments a year later regarding the resubmission of the will. She explained that in her opinion the notation regarding withdrawing the will memorialized the parties settlement agreement, part of which was that "the estate would go intestate." She told Johns attorney "In agreeing to intestate succession, he has agreed that he wasnt going to put forth this will, which, as we all know, has been subject to some question, the validity of the will. The way I see this agreement is that he agreed that he wasnt going to proceed on his rights under the will." Judge Gallagher further explained that "handwritten during the proceedings both parties agreed they were going to go by intestate succession. There was a lot of discussion about your clients (Johns) actions. At one point in time I thought we discussed whether the case was going over to the district attorneys office and whether or not there was some forgery. And we discussed — theres been discussed theft of the property by both brothers, and whether or not this was valid, whether there was undue influence. There was a lot of discussion of a lot of items on each issue, and . . . I issued the restraining order, and both parties agreed to intestate succession then."

A trial courts interpretation of the effect of its own order, based on its personal observation of the parties and its understanding of the parties intentions, must of course be given great deference on appeal. (See, Talman v. Talman (1964) 229 Cal.App.2d 39, 43.) Moreover, in ascertaining the purpose and meaning of the order we may examine the entire record, as well as the opinion of the trial judge who made the order. (Ibid.) Here there is evidence in the record to support the courts finding that John had agreed to withdraw the will as part of a settlement agreement. Counsel represented, without objection, at the beginning of the trial on competing claims that the will had been withdrawn and the probate was proceeding intestate. When John was questioned about the will at trial, he agreed that he had withdrawn the will and had done so after consulting with his lawyer. Johns attorney also represented to the court in the related civil case regarding the real property that the will was being withdrawn and not offered for probate. The record thus supports the courts finding that the parties had agreed to proceed without a will.

John now argues that his attorneys initials on the notation at the bottom of the temporary restraining order were not sufficient to bind him. (See, e.g., Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 403-404.) However, he did not raise this claim before the trial court and has waived it here. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.) Furthermore, John personally testified at trial in the presence of his attorney, that he withdrew the will after the will contest was filed.

The courts interpretation of the parties agreement to withdraw the will is supported by the evidence. We find no error in the court refusing to allow John to resubmit the will.

DISPOSITION

The orders of June 25, 2002 and October 4, 2002 are affirmed.

WE CONCUR: WUNDERLICH, J., MIHARA, J.


Summaries of

Estate of Diniz

Court of Appeals of California, Sixth Appellate District.
Nov 25, 2003
No. H024947 (Cal. Ct. App. Nov. 25, 2003)
Case details for

Estate of Diniz

Case Details

Full title:Estate of ELMIRO CAETANO DINIZ, Deceased. JORGE DINIZ, Petitioner and…

Court:Court of Appeals of California, Sixth Appellate District.

Date published: Nov 25, 2003

Citations

No. H024947 (Cal. Ct. App. Nov. 25, 2003)