Opinion
A147305 A147820
11-16-2017
Estate of NORMA FINLEY, Deceased. KAY FINLEY MOORE, Petitioner and Respondent, v. LINCOLN D. FINLEY, JR., Objector and Appellant. Estate of ALVA FINLEY, Deceased. LINCOLN D. FINLEY, JR., Petitioner and Appellant, v. KAY FINLEY MOORE, Objector and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RP15782307) (Alameda County Super. Ct. No. RP15775048)
These consolidated appeals arise from probate petitions filed by relatives of decedents Alva Finley (who died in 2005) and Norma Finley (who died in 2008). The trial court granted a petition filed by Kay Finley Moore (a daughter of the decedents) for letters of administration and appointed her the administrator of the estate of her mother, Norma Finley. Lincoln D. Finley, Jr. (Lincoln), a grandson of the decedents, opposed Moore's petition in the trial court, and he now appeals (No. A147305). In his other appeal (No. A147820), Lincoln purports to appeal after the superior court clerk entered minutes reflecting that the court "dropped" from the calendar Lincoln's petition to be appointed administrator of the estate of his grandfather, Alva Finley (a petition that Lincoln contends also included a request for appointment as administrator of the estate of Norma Finley). Lincoln has proceeded in propria persona in the trial court and in this court.
Because appellant shares a last name with decedents Norma Finley and Alva Finley, we refer to him by his first name for purposes of clarity. We intend no disrespect. (McArthur v. McArthur (2014) 224 Cal.App.4th 651, 653, fn. 1.)
We affirm the order appointing Moore the administrator of the estate of Norma Finley. We conclude the court's action in dropping from the calendar Lincoln's petition pertaining to the estate of Alva Finley is not appealable, and we therefore dismiss Lincoln's purported appeal of that action.
I. BACKGROUND
On June 22, 2015, Lincoln filed a petition for letters of administration of the estate of his grandfather, Alva Finley, initiating Alameda Superior Court case number RP15775048; he filed an amended petition on September 2, 2015. The first page of each of Lincoln's petitions states that he seeks to administer the estate of Alva Finley and that Alva Finley died in August 2005. In the headings on subsequent pages of Lincoln's petitions, the typed text lists the decedent as Alva Finley; on some of those pages, handwritten text follows, stating "& Norma Finley."
On July 24, 2015, Moore filed a petition for letters of administration of the estate of her mother, Norma Finley. The petition states Norma Finley died in March 2008. Moore's petition originally was filed in Alameda Superior Court case number RP15775048, the case that originated on June 22, 2015, involving the estate of Alva Finley. On August 17, 2015, the trial court entered in case number RP15775048 an "Order to Correct Petition for Letters of Administration Incorrectly Filed." In its order, the court stated that because Moore's petition involved a different decedent, it would be "set aside" in case number RP15775048 and would be reassigned a new case number. Moore's petition was assigned case number RP15782307.
On September 2, 2015, Lincoln filed a written objection to the appointment of Moore as administrator of Norma Finley's estate. Lincoln stated he opposed Moore's appointment because she had "discarded the will of the estate" and had failed to preserve the estate's assets. Lincoln also contended he should be appointed administrator because he had previously filed a petition for letters of administration.
In case number RP15775048 (i.e., Lincoln's petition to administer the estate of Alva Finley), the court initially set a hearing for August 18, 2015, and later continued it to September 16, 2015, then to November 9, 2015, and finally to January 5, 2016. In connection with these scheduled hearing dates, the court's probate examiner prepared notes identifying procedural steps Lincoln had not completed, such as completing required portions of the petition and serving notice appropriately. According to the clerk's minutes filed in case number RP15775048, Lincoln attended the August 18 hearing; the September 16 hearing apparently did not occur (as it was continued on the court's own motion prior to the hearing); and Lincoln did not attend the November 9 or January 5 hearings. The clerk's minutes for the January 5 hearing state "[t]he Petition for Letters of Administration is dropped by the Court for failure to cure procedural issues after three continuances."
In case number RP15782307 (i.e., Moore's petition to administer the estate of Norma Finley), the court initially set a hearing for September 16, 2015, and later continued it to November 9, 2015, and then to January 5, 2016. According to the clerk's minutes, Lincoln did not appear at the September 16 hearing; he appeared at the November 9 hearing but did not stipulate to having the matter heard by a temporary judge; and he did not appear at the January 5 hearing. At the January 5 hearing, the court granted Moore's petition and appointed her administrator of Norma Finley's estate, with limited authority to administer the estate under the Independent Administration of Estates Act (Prob. Code, § 10400 et seq.). The court clerk subsequently issued letters of administration.
Undesignated statutory references are to the Probate Code.
The minutes for the January 5 hearings in both matters state a court reporter was present. In designating the appellate record, Lincoln elected to proceed without a reporter's transcript. The appellate record therefore does not include a record of the oral proceedings at the January 5 hearings.
On January 6, 2016, Lincoln filed in case number RP15782307 a notice of appeal challenging the court's order appointing Moore the administrator of Norma Finley's estate; this appeal has been designated No. A147305. On the same date, Lincoln filed in case number RP15775048 a notice of appeal purporting to challenge the trial court's action at the January 5 hearing (i.e., dropping Lincoln's petition from the calendar); this appeal has been designated No. A147820. We ordered the appeals consolidated for decision.
The court's order granting Moore's petition for letters of administration and appointing Moore the administrator of Norma Finley's estate is appealable. (Code Civ. Proc., § 904.1, subd. (a)(10); Prob. Code, § 1303, subd. (a).)
In No. A147305, Moore has asked that we take judicial notice of the trial court's August 17, 2015 order assigning a new trial court case number to Moore's petition; that document is included in the clerk's transcript in No. A147820. Lincoln has not opposed the request. Since we have consolidated the two appeals for decision, we deny the request for judicial notice as moot.
II. DISCUSSION
A. Legal Standards
"When a decedent dies intestate, an administrator must be appointed to administer the estate. (§ 8460, subd. (a).) Section 8400, subdivision (a), provides that '[a] person has no power to administer the estate until the person is appointed personal representative and the appointment becomes effective. Appointment of a personal representative becomes effective when the person appointed is issued letters.' (§ 8400, subd. (a).)" (Estate of Heath (2008) 166 Cal.App.4th 396, 400.) Section 8461 specifies the priority of persons who are entitled to appointment as administrator. That statute provides, in relevant part: "Subject to the provisions of this article, a person in the following relation to the decedent is entitled to appointment as administrator in the following order of priority: [¶] . . . [¶] (b) Children. [¶] (c) Grandchildren." (§ 8461.) Under section 8462, "a relative of the decedent . . . has priority under Section 8461" only if that relative "is entitled to succeed to all or part of the estate," or "either takes under the will of, or is entitled to succeed to all or part of the estate of, another deceased person who is entitled to succeed to all or part of the estate of the decedent." (§ 8462.)
When a decedent leaves a will that does not name an executor, the court appoints an "administrator with the will annexed" to administer the estate. (§ 8440.) With a few statutory exceptions, the priority rules for appointment as administrator also apply to the appointment of an administrator with will annexed. (§ 8441.)
Section 8402 defines which persons are not competent to act as personal representatives. Among other grounds, "a person is not competent to act as personal representative . . . [if] [t]here are grounds for removal of the person from office under Section 8502." (§ 8402, subd. (a)(3).) Section 8502, in turn, specifies a personal representative may be removed for any of several reasons, including if he or she "has wasted, embezzled, mismanaged, or committed a fraud on the estate, or is about to do so" (§ 8502, subd. (a)), "is incapable of properly executing the duties of the office or is otherwise not qualified for appointment as personal representative" (id., subd. (b)), "has wrongfully neglected the estate, or has long neglected to perform any act as personal representative" (id., subd. (c)), or if "[r]emoval is otherwise necessary for protection of the estate or interested persons" (id., subd. (d)).
Any interested person may commence proceedings for administration of the estate of a decedent by filing a petition that seeks appointment of a personal representative. (§ 8000, subd. (a)(1).) "If appointment of the personal representative is contested, the grounds of opposition may include a challenge to the competency of the personal representative or the right to appointment. If the contest asserts the right of another person to appointment as personal representative, the contestant shall also file a petition and serve notice in the manner provided in Article 2 (commencing with Section 8110) of Chapter 2, and the court shall hear the two petitions together." (§ 8004, subd. (a); see § 1043.)
B. The Appointment of Moore as Administrator of the Estate of Norma Finley
Lincoln has not shown the court erred by granting Moore's petition to serve as administrator of the estate of Norma Finley. Moore, a child of the decedent Norma Finley, had a higher priority to serve as administrator than did Lincoln, a grandchild of Norma Finley. (§ 8461, subds. (b) & (c).) "The purpose of the provision for priority is to 'plac[e the administration of the estate] in the hands of persons most likely to manage the estate property to the best advantage of those beneficially interested.' " (Estate of Garrett (2008) 159 Cal.App.4th 831, 836.) When a person in a higher priority class is otherwise eligible and has not waived the right to appointment, the court has no discretion to appoint someone in a lower class. (Estate of Lewis (2010) 184 Cal.App.4th 507, 513-514.)
Moore, as a child of the decedent, also had a right to succeed to the decedent's estate (see § 8462), both under the rules governing intestate succession (see § 6402, subd. (a)) and (as discussed below) under the terms of the alleged missing will.
Lincoln is incorrect in contending he was entitled to serve as administrator of Norma Finley's estate because he filed a petition before Moore did. As an initial matter, Lincoln's petition requested appointment as administrator of the estate of Alva Finley, his grandfather (not the estate of Norma Finley, his grandmother). On Lincoln's form petition and amended petition, Alva Finley's name is typed in the blank for "decedent"; Alva Finley's date of death is provided in the appropriate blank; each document states the decedent had no predeceased spouse (which was true of Alva Finley, but not of Norma Finley); and the text of the petitions does not refer to administration of the estate of Norma Finley. The inclusion, in handwriting, of Norma Finley's name in the headings on some subsequent pages of the petitions did not require the court to recognize the documents as proper petitions to administer the estate of Norma Finley.
In any event, even if Lincoln's petition could be construed as a request for appointment as administrator of Norma Finley's estate (and even assuming Lincoln had provided proper notice and fulfilled other procedural prerequisites in connection with his petition), at most this would have established the existence of competing petitions, which the court would then hear together. (§ 8004, subd. (a).) Lincoln has cited no authority supporting a conclusion that the first-filed of two competing petitions is entitled to automatic priority. Instead, as noted, Moore, unless otherwise ineligible, had a higher statutory priority than Lincoln, and the court had no discretion to deny her appointment or to appoint Lincoln in her stead.
In his written objection to Moore's appointment, Lincoln contended Moore had "discarded" the decedent's will and had failed to preserve the estate's assets. This filing did not obligate the court to conclude Moore was not competent to serve as administrator, and Lincoln has not shown the court abused its discretion by appointing her. (Estate of Lewis, supra, 184 Cal.App.4th at p. 514 [court's order appointing administrator reviewed for abuse of discretion].) Lincoln did not verify his objections (see § 1021, subd. (a)(2)), and he did not submit any evidence supporting his allegations of misconduct. Moore responded to the objection by submitting sworn declarations responding to Lincoln's criticisms, including his allegations about a discarded will. As noted, Lincoln did not designate for inclusion in the appellate record the reporter's transcript of the hearing at which the court appointed Moore administrator, so we have no basis for concluding the court's ruling at that hearing was an abuse of discretion or was not supported by the evidence. (See Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178.) Unsubstantiated suggestions by Lincoln that the court failed to address, or incorrectly resolved, any issues pertaining to Moore's alleged conduct or her asserted unfitness to serve as administrator provide no basis for reversal.
Moore stated in a declaration that "[s]ome months before" her father's death in August 2005, Moore's daughter "brought to [Moore's] home for safe keeping" a joint will for her parents (Alva and Norma Finley). Moore stated the will was a one-page typed document signed by both of her parents; it stated that after both parents died, their property was to be equally divided among their six children, including Moore; Moore's recollection was that the will did not designate an executor; and she did not recall seeing witness signatures on the will. Moore stated she misplaced the will and was unable to find it. Moore recalled that the name of Alva Finley's longtime attorney was printed at the top of the will. At some point (after the will was missing), Moore spoke to that attorney, who confirmed he had drafted a will for Moore's parents but said he did not have a copy of it.
Lincoln's remaining arguments are not persuasive. He contends the court's action in assigning a new case number to Moore's petition was somehow improper. As noted, Lincoln's petition appeared to seek appointment only to administer the estate of Alva Finley. We see nothing improper in the court's designating a new case number for Moore's petition to administer the estate of Norma Finley. And although it is unclear whether Lincoln received notice of the new case number at the time it was assigned, it is clear he had notice of Moore's petition (as he filed objections in response to that petition) and notice of the January 5, 2016 hearing at which the court appointed Moore administrator (as he was present at the November 2015 hearing when the court scheduled the January hearing). Lincoln has not identified any actions he would have taken had he learned of the new case number earlier.
The order assigning the new case number to Moore's petition lists as a service address for Lincoln his correct street address, but does not include his apartment number.
Lincoln also asserts in his appellate briefs that he sought to attend the January 5, 2016 hearing and arrived at the time it was scheduled to begin or shortly thereafter, but the hearing already had concluded. There is no evidence in the record supporting this assertion. The clerk's minutes and an order signed by the judge appointing Moore administrator reflect that the hearing occurred. We also note Lincoln did not seek relief in the trial court from his failure to attend the hearing (or his failure to arrive on time), instead filing a prompt notice of appeal.
Lincoln suggests the attorney who may have helped draft his parents' will should have testified about the will's contents. But the record does not show that Lincoln subpoenaed the attorney or made any other effort to present his testimony. The court did not abuse its discretion by ruling based on the evidence presented to it.
Finally, we see no arguable merit to Lincoln's conclusory suggestion that the trial court was biased against him based on his race or his status as a self-represented litigant. We summarily reject this argument.
C. Lincoln's Petition for Appointment as Administrator of Alva Finley's Estate
As noted, the clerk's minutes for the January 5, 2016 hearing in Alameda Superior Court case number RP15775048 (the proceeding initiated by Lincoln's filing of a petition to administer Alva Finley's estate) states the court "dropped" the matter due to Lincoln's "failure to cure procedural issues after three continuances." Lincoln purports to appeal the action taken by the court at this hearing.
"It is well established that '[a]ppeals which may be taken from orders in probate proceedings are set forth in . . . the Probate Code, and its provisions are exclusive.' [Citation.] 'There is no right to appeal from any orders in probate except those specified in the Probate Code.' " (Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1125-1126.) In probate proceedings involving a decedent's estate, "the grant or refusal to grant" certain orders (including an order granting or revoking letters to a personal representative) may be appealed. (§ 1303.)
Here, the clerk's minutes do not state the court denied, or refused to grant, Lincoln's petition to be appointed administrator. Rather than reaching the merits of Lincoln's petition, it appears the court just took the matter off calendar due to Lincoln's failure to cure procedural defects. The clerk's minutes do not state the court prohibited Lincoln from seeking to put the matter back on calendar after complying with applicable procedural requirements. (No written order signed by the judge was issued as a result of this hearing, and as noted, there is no reporter's transcript in the record.) Lincoln has cited no provision of the Probate Code authorizing an appeal in these circumstances. We shall dismiss Lincoln's purported appeal from the court's action "dropp[ing]" his petition from the calendar.
D. Lincoln's Peremptory Challenges
On January 8, 2016, after the court had issued its rulings and after Lincoln had filed his notices of appeal, Lincoln filed peremptory challenges (Code Civ. Proc., § 170.6) in both matters, seeking to disqualify the judge who had presided at the January 5 hearings. The judge denied the challenges on January 21, 2016. Lincoln now seeks to challenge those denials on appeal. A ruling on a peremptory challenge to a judge is not appealable; it is reviewable only by writ petition. (Code Civ. Proc., § 170.3, subd. (d); Frisk v. Superior Court (2011) 200 Cal.App.4th 402, 412.) Lincoln's challenges also were untimely, as he filed them after the January 5, 2016 hearings had been completed. (See People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1171-1172.) There is no basis for reversal.
E. Moore's Motions for Sanctions
In both appeals, Moore has filed brief motions asking this court to impose sanctions on Lincoln on the ground his appeals are frivolous. (See Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a)(1).) Moore argues sanctions are appropriate because Lincoln failed to appear at the January 5 hearing and then appealed, rather than seeking relief in the trial court. "[S]anctions should be 'used most sparingly to deter only the most egregious conduct,' " and an appeal's lack of merit "does not, alone, establish it is frivolous." (In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 518.) We are not persuaded sanctions are appropriate here.
III. DISPOSITION
In No. A147305, the order appointing respondent Kay Finley Moore the administrator of the estate of Norma Finley is affirmed. Moore's motion for sanctions is denied. Moore shall recover her costs on appeal.
In No. A147820, the appeal is dismissed. Moore's motion for sanctions is denied. Moore shall recover her costs on appeal.
/s/_________
Streeter, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Rivera, J.