Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07PRO792
CANTIL-SAKAUYE, J.
Objector Douglass W. Dunn (Dunn) appeals from an order denying his will contest and admitting the will of his estranged wife Christina M. Dunn (decedent) to probate. Neither Dunn nor Amir Aalam, his attorney of record from the law firm of Purdy & Brehme, appeared at the July 10, 2007, hearing on the will contest. On appeal Dunn argues that he is entitled to reversal because: (1) the court erred in admitting the will without requiring cross-examination of both subscribing witnesses; (2) the court abused its discretion and denied Dunn due process by refusing to allow him to appear through attorney Robert Schell; and (3) the decedent’s signature on the proffered will differs significantly from the decedent’s undisputedly genuine signature on another document. Alderson seeks attorney fees and costs for defending the will contest on appeal. We shall affirm the order and limit Alderson’s award to costs as the prevailing party.
FACTUAL AND PROCEDURAL BACKGROUND
Dunn and decedent were married in November 1985 and separated in May 2004. There were two children of the marriage: Sarah, born in 1989, and Natalie, born in 1992. Decedent filed a petition for dissolution of marriage in June 2004, and that action was still pending when she died on March 7, 2007.
Decedent suffered from metastatic breast carcinoma. In January 2007, her doctor stated in support of a request to expedite legal proceedings that decedent had a life expectancy of less than six months.
Attorney Gwendolyn K. Christeson met with decedent at decedent’s home on January 23, 2007, to discuss her estate plan and the pending dissolution. As part of the estate plan, Christeson prepared a last will and testament, a grant deed severing joint tenancy, a power of attorney for financial matters, and an advance health care directive and power of attorney. Christeson met with decedent a second time at her office on February 5, 2007. On that occasion, Christeson reviewed each document with the decedent, witnessed decedent’s signature on her will as well as the other documents, and signed the will as a subscribing witness.
On March 12, 2007, Patricia I. Alderson petitioned for probate of the will pursuant to Probate Code section 8000, for letters testamentary (§§ 8403 & 8404), and for authorization to administer the estate under the Independent Administration of Estates Act (§ 10400 et seq. [IAEA]). At the April 13, 2007 hearing on Alderson’s petition, Dunn and his attorney “specially appear[ed]” through attorney Robert Schell, who represented Dunn in the dissolution proceedings. Schell submitted Dunn’s objections for filing. The court set the contested hearing on May 4, 2007, and gave written notice to attorneys Christeson and Aalam.
Hereafter, undesignated statutory references are to the Probate Code.
Dunn objected to the petition on two grounds: “(1) The will that has been submitted to be probated does not contain CHRISTINA M. DUNN’S accurate signature and should not be admitted to Probate. [¶] (2) The request that ALDERSON be given ‘full’ authority under the [IAEA] should be denied.”
In a declaration filed with the objection, Dunn stated that “[t]oward the end of her battle [decedent] was of weak mind as a result of the effect of the cancer and chemotherapy treatment.” Dunn declared “without reservation that the signature on the [] Will [was] not [decedent’s] usual hand.” He continued: “It would also not make sense for [decedent] to sign the Will. The sole beneficiaries under the Will are our daughters Natalie and Nicole, both of whom want to live at the Property with me. It appears to me that [decedent] must have been manipulated by her attorneys at a time when she was weak and not of sound mind. I can see no other reason [decedent] would suddenly change her consistently expressed intent to keep the Property out of Probate.”
This appears to be an error in transcription of the declaration. The Dunn’s children were Sarah Alexandra and Natalie Nicole.
In the will contest and objection to probate filed on May 3, 2007, Dunn listed three specific grounds for denial of probate: (1) the purported will was not executed by decedent; (2) in the event the will was signed by decedent, it was “signed at a time when [decedent] was not of sound mind and lacked capacity;” and (3) in the event that the will was signed by decedent, it was “signed as a direct result of undue influence exerted over [decedent] at a time when [decedent] [was] so mentally weak that she could not remember how to sign her own name.”
In papers filed in response to Dunn’s objections, Alderson indicated that the two subscribing witnesses to decedent’s will had signed declarations and would be available at trial “to testify regarding their involvement with witnessing the Decedent execute her Last Will and Testament on February 5, 2007.” Christeson, who was one of those witnesses, stated in her declaration that in her opinion, “the Testator had the requisite capacity and competency to execute her will at the time [she] witnessed her signing. . . . During both [of Christeson’s] meetings with the Decedent [she] was aware of her battle with cancer and her pending death, however[,] the Decedent consistently relayed her intent that her husband should not inherit her community property interest in the couple’s joint assets nor did she want him to inherit any of her separate property. It was Decedent’s intent to sever the joint tenancy when she executed the Grant Deed on February 5, 2007.” Both Christeson and Sandra M. Dorendorf filed proofs of subscribing witnesses.
Christeson and Schell were present at the May 4, 2007, contested hearing, with Schell “specially appearing” for the law firm of Purdy & Brehme and attorney Aalam. Also present was Michael McEnroe, the decedent’s attorney in the dissolution proceedings. The court continued the contested hearing and the hearing on the petition for probate of the will to July 10, 2007. The minute order expressly stated that both parties were to have the original documents examined by a handwriting expert. In late May and early June, Aalam and Christeson exchanged letters confirming the new date for the contested hearing.
On June 6, 2007, Dunn filed an amended will contest and objection to probate which alleged the same grounds for denial as he alleged in his original papers. He also submitted the declaration of handwriting expert James A. Blanco who compared the signature on the will (Q1) with the decedent’s signature on other documents executed over a period of 10 years (K1). Blanco opined that “[g]iven all of the observed dissimilarities, the ‘Christina Marie Dunn’ signature appearing on the Q1 document does not represent the natural, normal nor genuine handwriting characteristics of Christina Marie Dunn as demonstrated in the K1 known specimen signatures, and consequently, it is highly probable that the writer of the K1 specimens did not write the Q1 ‘Christina Marie Dunn’ signature. ‘Highly probable did not write’ is a term of art in Forensic Document Examination opinion rendering and means that the examiner is virtually certain that the questioned and known writings were not written by the same person.”
Dunn moved to disqualify Christeson as Alderson’s attorney of record on the ground that Christeson was a subscribing witness, and therefore a “key witness” in the will contest. He also argued that Christeson’s personal interest in the statutory fees she would receive as attorney for Alderson “would cast doubt on Ms. Christeson’s ability to give testimony untainted by her personal interests.” Alderson responded that the Rules of Professional Conduct permitted Christeson to appear in a will contest before a judge, not a jury. She also represented that “[i]f the judge believes that such testimony by Attorney Christeson would be disruptive to the court then Attorney Christeson is prepared to be questioned by Attorney Nannette J. Stomberg” whose office was near the court.
The July 10, 2007, contested hearing on Alderson’s petition for probate of the will and Dunn’s motion to disqualify Christeson was not reported. We set forth the relevant procedural points, findings, and rulings contained in the minute order.
Attending the hearing were Alderson, Christeson and Schell who was “specially appearing” for Purdy & Brehme. Dunn was not present. It appears that the first order of business was a discussion on the “nature of Mr. Schell’s appearance.” Schell stated that he was an “‘appearance attorney,’” did not intend to substitute as Dunn’s attorney, and felt comfortable arguing the procedural issues. The court expressed concern about proceeding without Dunn’s consent for Schell to appear on his behalf. The court indicated its tentative decision that Schell could not try the case because he did not represent Dunn and there was no substitution of attorney. Because there was no appearance by the objector, the will would be admitted into probate under the court’s tentative ruling.
The court did permit Schell to argue several procedural matters. Thereafter, the court denied Dunn’s motion to disqualify Christeson as attorney of record, overruled Schell’s objection that Alderson failed to respond to the first amended will contest, and denied at least three requests by Schell to continue the hearing on the will contest. In response to the request for continuance to allow expert witness Blanco to be personally present, the court stated: “[I]t is clear that today is the time and date for the hearing re: contest of will, and it is Mr. Dunn’s problem if he is not present and has no witnesses to testify. Court rules that, as there is no noticed motion to continue, Mr. Schell’s oral motion to continue the hearing . . . is denied.” Schell made another request for continuance and asked the court to issue an order to show cause re: the failure of Purdy & Brehme to appear at the proceeding “due to his inability to present evidence on behalf of Mr. Dunn.” The court directed the record to reflect: “Mr. Schell announces that he has appeared today to interpose the objections to proceed with the contested hearing scheduled for today, having been associated for limited purposes by Mr. Dunn’s attorney of record, the Law Offices of Purdy & Brehme. Court has ruled on the procedural objections. Mr. Schell represented that ‘I am not prepared to represent Mr. Dunn’s interest beyond the procedural issues raised today.’” The court informed Schell that he was no longer part of the proceedings.
The hearing moved to the will contest. Alderson produced and Christeson examined Dorendorf, one of the subscribing witnesses. Impliedly rejecting Dunn’s contest of the will, the court found that Alderson had satisfied the burden of proof of due execution and had provided the required notice. It admitted the will to probate, appointing Alderson as the personal representative of decedent. This appeal ensued.
DISCUSSION
I.
Burdens, Presumptions and Standards of Review
In a pre-probate will contest, the proponents of the will have the burden of proof of due execution. (§ 8252, subd. (a).) Proof of the signatures of the witnesses and the testator raise a presumption that the will has been duly executed. (Estate of Pitcairn (1936) 6 Cal.2d 730, 732; Estate of Burdette (2000) 81 Cal.App.4th 938, 946.) Those contesting the will have the burden of proof of lack of testamentary capacity, undue influence or duress. (§ 8252, subd. (a).)
The standard of review of an order admitting a will to probate is the same as for civil appeals generally. (Estate of Zalud (1972) 27 Cal.App.3d 945, 948.) Under the substantial evidence rule, “‘“all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary . . . principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.” (Italics added.)’” (Estate of Teel (1944) 25 Cal.2d 520, 526-527, quoting Estate of Bristol (1943) 23 Cal.2d 221, 223.) “The construction of a statute and its applicability to a given situation are matters of law to be determined by the court.” (Estate of Madison (1945) 26 Cal.2d 453, 456.)
Where, as here, there is no statement of decision and no reporter’s transcript, the appellate court infers that the trial court impliedly made every factual finding necessary to support the judgment. (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 104 [court impliedly found that the trust was an invalid attempt to change the beneficiary designation in a will] (Schubert); Estate of Fain (1999) 75 Cal.App.4th 973, 992 [“[I]t is presumed that the unreported trial testimony would demonstrate the absence of error”].)
II.
Examination of Subscribing Witnesses
Section 8253 provides: “At the trial, each subscribing witness shall be produced and examined. If no subscribing witness is available as a witness within the meaning of Section 240 of the Evidence Code, the court may admit the evidence of other witnesses to prove the due execution of the will.” Here, Alderson produced and examined Dorendorf, one of two subscribing witnesses. Alderson indicated in papers filed in opposition to Dunn’s objections and contest that Christeson, the other subscribing witness, was available to testify and had another attorney prepared to examine her at trial.
Dunn argues that the court erred in admitting the will to probate without requiring examination and cross-examination of both subscribing witnesses pursuant to section 8253 because both were available within the meaning of Evidence Code section 240. There is no merit in Dunn’s argument. He does not argue on appeal that the court abused its discretion in denying the requests for continuance made by Schell on his behalf. Indeed, any prejudice Dunn might have suffered at the July 10, 2007, hearing was of his own making.
We begin by clarifying Alderson’s claim that there was no longer a will contest after the court informed attorney Schell that he was no longer part of the proceedings. The statement is true in the colloquial sense that by failing to appear, Dunn did not “contest” the will in person, challenge the evidence offered by Alderson at the hearing, or offer expert testimony on his own behalf. However, Dunn’s objections and will contest were still before the court until the court made its ruling at the close of the hearing.
Section 8253 ordinarily requires the proponent of the will to produce both subscribing witnesses for examination at trial. However, “the purpose of having two subscribing witnesses to protect the testator at execution does not also operate as a requirement for proving the will.” (Estate of Burdette, supra, 81 Cal.App.4th at p. 945 [reading sections 8253 and 8224 together to permit testimony of unavailable subscribing witness through a sworn written transcript obtained out of state]; see also Estate of Parsons (1980) 103 Cal.App.3d 384, 389 [“it is not always necessary [under former section 51] that each and every one of the subscribing witnesses testify in court”].) Moreover, the failure to object at trial that the proponent called only one of two subscribing witnesses forfeits the issue on appeal. (Estate of McCarty (1881) 58 Cal. 335, 337.)
In any event, Christeson and Dorendorf each filed proofs of subscribing witnesses on penalty of perjury. Both were present at the July 10, 2007, hearing. The court also had before it the declaration submitted by Dunn’s handwriting expert. In the absence of a statement of decision we infer that the trial court impliedly made every factual finding necessary to support the judgment. (Schubert, supra, 95 Cal.App.4th at p. 104.) And without a reporter’s transcript, we presume that the unreported trial testimony would demonstrate the absence of error. (Estate of Fain, supra, 75 Cal.App.4th at p. 992.)
III.
Schell’s Exclusion From The Will Contest On July 10, 2007
Dunn contends that the court erred by “suddenly” and “without notice” disallowing Dunn to appear through Schell at the hearing on the will contest. Dunn’s contention is premised on a mischaracterization of what occurred at the July 10, 2007, hearing. Attorney Schell made it clear to the court that Purdy & Brehme had associated him for the limited purpose of arguing procedural motions, including requests for continuance of the contested hearing. It was equally clear that Dunn did not appear in order to argue the substantive issue.
There is no support in the record for Dunn’s claim that the court’s action was “sudden” and “without notice.” Dunn and his attorney had notice of the July 10, 2007, hearing. Indeed, Aalam reminded Christeson about the date. Earlier hearings where Schell made a “special appearance” did not involve the presentation of evidence or argument on the merits of the will contest. The term “special appearance” ordinarily refers to a party’s limited appearance for purposes of objecting to the court’s jurisdiction without submitting to jurisdiction. (2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 197, p. 763.) Here, the court used the term “specially appearing” loosely to describe Schell’s presence at the probate proceedings. Absent formal substitution of counsel, Schell’s role was unclear. The court insisted on clarifying Schell’s role at the start of the July 10, 2007, hearing. Having considered Schell’s explanation in the absence of Dunn and his counsel, the court ruled that Schell was “no longer a part of the proceedings.” In the absence of a reporter’s transcript, we presume that the unreported trial testimony would demonstrate the absence of error. (Estate of Fain, supra, 75 Cal.App.4th at p. 992.) Accordingly, there was no abuse of discretion and no denial of due process.
IV.
Sufficiency Of The Evidence Of Due Execution
The gist of Dunn’s third argument on appeal is not entirely clear. The heading suggests that Dunn is directing arguments on the merits of his unsuccessful challenge to the decedent’s execution of the will to this court. Alderson treats it as an improper invitation for us to substitute our factual findings for those of the trial court. At another point, Dunn repeats his challenge to the court’s refusal to allow Schell to argue the merits of the will contest. In his reply brief, he maintains that the court failed to adequately examine the record. We shall read Dunn’s argument as a challenge to the sufficiency of the evidence to support the court’s implied finding that the decedent’s signature was genuine. Once again, in the absence of a statement of decision we infer that the trial court impliedly made every factual finding necessary to support the judgment. (Schubert, supra, 95 Cal.App.4th at p. 104.)
V.
Attorney Fees And Costs On Appeal
Alderson argues that this court has discretion under section 10811 and Code of Civil Procedure section 1033.5, subdivision (a)(10) to award her attorney fees and costs for successfully defending the will contest against Dunn on appeal. We conclude that Alderson is entitled to costs as the prevailing party. (Cal. Rules of Court, rule 8.278(a)(4).) However, requests for attorney fees for successfully defending a will contest under section 10811 must be directed to the trial court in the first instance.
California Rules of Court, rule 8.278(a)(4) provides: “In probate cases, the prevailing party must be awarded costs unless the Court of Appeal orders otherwise, but the superior court must decide who will pay the award.” Because we affirm the order without modification, Alderson is entitled to costs as the prevailing party in this appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
Code of Civil Procedure section 1033.5 authorizes recovery of attorney fees as costs from the opposing party “when authorized by any of the following: [¶] (A) Contract. [¶] (B) Statute. [¶] (C) Law.” (Code Civ. Proc., § 1033.5, subd. (a)(10).) However, Alderson’s reliance on section 10811 as statutory authorization for a discretionary award of attorney fees as costs on appeal is misplaced. Sections 10810 and 10811 describe the compensation paid from the decedent’s estate to attorneys hired by the personal representative. For “ordinary services,” the attorney’s compensation is based on a percentage of the value of the estate. (§ 10810.) For “extraordinary services,” which include the successful defense of a will contest (Estate of Dunton (1936) 15 Cal.App.2d 729, 731), “in addition to the compensation provided by Section 10810, the court may allow additional compensation . . . in an amount the court determines is just and reasonable.” (§ 10811, subd. (a).) Petitions for attorney fees under section 10811 are directed to the trial court as part of the probate proceedings. (See, e.g., Estate of Schuster (1984) 163 Cal.App.3d 337; and Estate of Fulcher (1965) 234 Cal.App.2d 710.)
DISPOSITION
The order is affirmed. Alderson shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2) & (a)(4).)
We concur: DAVIS, Acting P. J., NICHOLSON, J.