Opinion
E065702
07-11-2018
Estate of MARLO MARKS, Deceased. RIVERSIDE COUNTY PUBLIC ADMINISTRATOR, Petitioner and Respondent, v. RONALD L. MARKS, JR., Objector and Appellant.
Ronald L. Marks, Jr., in pro. per., for Objector and Appellant. Law Office of Toni Eggebraaten and Toni Eggebraaten, for Petitioner 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INP1400244) OPINION APPEAL from the Superior Court of Riverside County. James A. Cox, Judge. Affirmed. Ronald L. Marks, Jr., in pro. per., for Objector and Appellant. Law Office of Toni Eggebraaten and Toni Eggebraaten, for Petitioner and Respondent.
After Marlo Marks (Marks) died intestate, her son, Ronald Marks, Sr. (Ronald Sr.), her grandson, Ronald Marks, Jr. (Ronald Jr.), and Ronald Jr.'s mother, Kathryn Mattos (Mattos) each tried unsuccessfully to become administrator of her estate. The probate court appointed Riverside County as Public Administrator and ultimately approved the Public Administrator's petition to distribute the estate to Ronald Sr., Marks's only child. Representing himself as he did during the probate proceedings, Ronald Jr. appeals the final distribution, claiming his father committed extrinsic fraud by harassing and intimidating him and Mattos to keep them out of the probate proceedings. To support this allegation, Ronald Jr. asks us to take judicial notice of various documents that were not presented to the trial court.
We will affirm the judgment. Ronald Jr. did not raise the issue of extrinsic fraud in the probate court and, in any event, his participation in the probate proceedings defeats his claim that his father prevented him from learning about the case.
I
FACTUAL BACKGROUND
Marks died on October 1, 2013, survived by her only child Ronald Sr. Ronald Sr. and Mattos are not married, but have two children together—Ronald Jr. and Ashley. After her death, Ronald Sr., Mattos, and their children took up residence in Marks's Palm Springs home. In April 2014, Mattos filed a petition to probate Marks's intestate estate and appoint her as administrator. Mattos checked the box stating Marks died intestate and wrote by hand on the form, "Marks always said to the children they were in the will[;] hard drive to computer missing[; Ronald Sr.] told [Palm Springs] police Ashley was named executor . . . if she graduated." Mattos did not give Ronald Sr. notice of her petition. A few days later, Ronald Sr. learned of Mattos's petition and filed his own competing petition to probate Marks's intestate estate and name his attorney, Mr. Bosky Kathuria, as administrator. Ronald Sr. filed his petition from jail. Days earlier, he had been arrested for domestic violence after Mattos called the police on him. In his petition, Ronald Sr. alleged Mattos orchestrated his arrest to prevent him from participating in the probate proceedings. He also argued he was the sole heir of his mother's estate, Mattos was not an interested party, and she had not given him notice of her petition.
Months later, in September 2014, appellant Ronald Jr., filed two petitions to probate Marks's intestate estate and appoint him as administrator. He also failed to provide notice to Ronald Sr. In both petitions, he marked that his grandmother had died intestate. That same month, Ronald Sr. wrote a letter to the trial court from jail claiming Mattos was scheming to obtain his mother's estate and that she and Ronald Jr. had no standing in the probate proceedings. At a hearing that month, the trial court ordered the parties to address at the next hearing why it should not direct the Riverside County Public Administrator (Public Administrator) to file a petition for appointment. (See Prob. Code, §§ 7600, 7601 [public administrator is a county officer who is authorized to take charge of property and administer intestate estates under certain circumstances, such as when "no personal representative has been appointed"].) It also ordered Ronald Sr. to stop sending ex parte communications to the court.
The following month, Ronald Jr. amended both of his petitions, and again failed to notice his father. In an attachment to the amended first petition, he wrote, "[Petitioner] intends to marshal assets of the decedent for the exclusive use of the decedent's son—his father—after payments of debts and expenses of administration. The decedent's son is the sole beneficiary of her estate under California Probate Code section 6402(a) . . . Petitioner is seeking recruitment into the United States Military and would do nothing to harm his Grandmothers estate, beneficiaries, or creditors." In an attachment to the amended second petition, he wrote that his grandmother's home was at risk of foreclosure and requested "immediate action" in the form of special administration powers.
Ronald Jr. also filed an objection to the appointment of the Public Administrator consisting of an unverified handwritten declaration by Mattos in which she complained about the court not holding a hearing despite her having told both "the courts" and the police that Ronald Sr. had taken the will. She said Ronald Sr. "told me he seen the will and Ashley was named executor," but also said that if Ronald Sr. was the sole heir, then he wanted Ronald Jr. to be "in charge of the estate." She attached to her declaration letters she claimed were from Ronald Sr., "giving his daughter Ashley Marks all of the money" and "giving [Ronald] Jr. the house . . . for not being there in the past." Ronald Jr. did not serve the objection on the Public Administrator or Ronald Sr.
At a hearing on December 24, 2014, the trial court stated it had dismissed all of the family members' pending petitions for failure to give notice. It then chastised Ronald Jr. for failing to provide notice "over and over again" despite being told at several hearings to do so, as well as for filing two separate but repetitious petitions under two different case numbers and "caus[ing] horrendous confusion amongst the examiners and myself." The court added, "It is obvious to me that this estate cannot be handled in a knowledgeable or proper fashion by Mr. Marks Jr. I am convinced of that after my experiences over the last probably six months or longer on this case, so I am not inclined to appoint him. I believe the only person that can handle this, apparently the only heir at law, is in jail." The court ordered the Public Administrator to file a petition for appointment and in the interim gave her special authority to deal with the emergency issue of Marks's residence. Mattos objected to involving the Public Administrator saying, "I told you that [Ronald Sr.] took the will out of the hard drive, and there has not been an order issued by you for a hearing on that," to which the court replied, "You need to understand, Ms. Mattos, that I set hearings upon petitions that are filed before me. I don't make up matters to set hearings. Somebody has to file a petition. We will let the public administrator make a determination as to whether there is a will or not a will, and if there is an issue and somebody has an objection, they can present those matters before the court."
At a hearing in February 2015, the court granted the Public Administrator's petition for appointment. Mattos filed a handwritten objection to the appointment the same day as the hearing (again, with no notice to the parties). The court overruled her objection on the ground she had no interest in the estate and no basis for objecting. The court reminded Mattos it had dismissed her petition because she hadn't paid the filing fee or requested a hearing within the statutory deadline. "One of the reasons that I sought the assistance of the Public Administrator's office was because it appeared to me . . . from the nature of your pleadings that you filed, you really didn't have the ability to do the work that this job required. That's one reason I sent the notice to the Public Administrator's office, [and] the fact that your petition, and the petition of your relatives were all dismissed."
It took the Public Administrator nearly five months (until July 2015) to successfully evict Mattos and Ronald Jr. from Marks's house. In June 2015, Mattos filed with the probate court a declaration of Ronald Jr. that she had filed in the unlawful detainer action. The declaration appears to be in her handwriting and is signed by her son. It states: "My father threatened my mothers life I don't know what to do. My grandma left the Estate to me and my sister. My father stole the will physically assaulted my mother." A few days after that filing, Ronald Jr. filed a petition to remove the Public Administrator. Among other allegations, he claimed the Public Administrator "failed to give notice of administration to heirs and or beneficiaries of the estate," failed to act on the Riverside County Tax Collector's offer to reimburse four years of back taxes levied on Marks's residence, and failed to act on the allegation Ronald Sr. had stolen the will. Neither Ronald Jr. nor his mother appeared at the hearing on his removal petition. The court denied the petition for failure to provide notice and to state sufficient grounds for removal, adding, "[T]hat's been a problem from the very beginning of this case . . . [g]etting any of these relatives to serve the heir[] at law."
In December 2015, after his release from custody, Ronald Sr. filed a petition seeking a preliminary distribution of $20,000 for living expenses. Mattos filed an objection to that petition in which she described herself as an "interested party" and "overseer," and informed the court she would be filing a petition to probate Marks's will. The same day, she filed a document entitled, "Petition to Probate Will," in which she accused the Public Administrator of attempting to hide the results of the search of Marks's computer hard drive and of conspiring with Ronald Sr. to "defraud" the estate.
At the hearing on Ronald Sr.'s petition for preliminary distribution, counsel for the Public Administrator commented it did not think Mattos's petition to probate Marks's will was timely or that Mattos had standing to bring it. The court agreed and added that the petition did not appear to satisfy the statutory requirement to attach the will or describe its contents. Counsel informed the court that a forensic examiner in the sheriff's department had analyzed Marks's computer hard drive and found no evidence of a will. The examiner did find emails between Marks and a company called LegalZoom, and after subpoenaing the company's records, learned that Marks had created an online account for purposes of creating a will but never completed the application process. The court found there was no reason to postpone the preliminary distribution on the basis of a potential will and ordered a preliminary cash distribution to Ronald Sr.
Later that month, the Public Administrator filed a first and final accounting and petition for distribution (final petition) which contained a demurrer to Mattos's petition to probate Marks's will. Ronald Jr. did not include the final petition in the appellate record, despite the fact he is appealing the court's decision to grant that petition. In its appellate brief, the Public Administrator represents that it attached to its final petition verified declarations detailing its investigation into Ronald Jr.'s and his mother's claim that Marks had a will. Because the final petition is not in the record, neither are those statements; however, the Public Administrator says they convey the same information it represented to the court at the hearing on the preliminary distribution (i.e., that there was no evidence of a will on the computer's hard drive and Marks never completed her LegalZoom will application).
On March 22, 2016, the court held the hearing on Mattos's petition and the Public Administrator's final petition. Ronald Jr. and his mother did not attend the hearing or object to the final petition. The court denied Mattos's petition to probate Marks's will and sustained the Public Administrator's demurrer on the following grounds: (1) the petition was untimely under Probate Code section 8226, which requires a petitioner to file a petition to probate a will within 60 days of learning of the will's existence; (2) the petition lacked a prayer and a description of the contents of the will to be admitted, and was not presented on the mandatory Judicial Council form; and (3) Mattos did not provide notice. The court granted the final petition and entered an order distributing to Ronald Sr. the remainder of Marks's estate (which consisted of about $200,000 and a 2008 Volkswagen). Ronald Jr. timely filed a notice of appeal of "the final judgment entered in this action on March 22, 2016" by the "Superior Court of California for the County of Riverside, Indio Branch."
Mattos also filed, but failed to pursue, a notice of appeal. We dismissed her appeal in October 2016.
II
DISCUSSION
In his opening brief, Ronald Jr. states he is appealing: (1) the March 22, 2016 order granting the Public Administrator's final petition and (2) the "Judgment After Trial by Court in Unlawful Detainer at location of Riverside County Superior Court for Palm Springs, California (hon. Bjork) (Case No.: PSC1501635)." As we lack jurisdiction to review a judgment from a previous action, rendered by a different court, we address only his challenge to the probate court's final order.
Ronald Jr. argues we should reverse the final order because his father, Ronald Sr., "defraud[ed]" him and his mother, Mattos, during the probate proceedings "by intimidation, harassment, deceit, assaults and so forth." Specifically, he alleges that while his father was incarcerated, "[f]our or more persons, sent by [Ronald] Sr., harassed, intimidated, and threatened etc. Appellant and his family on direction of [Ronald] Sr. all throughout the probate case in the respondent court." He claims "these events were contrived and perpetrated upon him and his family in attempts of harassment, intimidation, and fraud against him to keep him out of the probate case to which this appeal derives." He asks us to award him compensatory damages of $60,000 and punitive damages of $240,000 for his father's "egregious and reprehensible actions."
Ronald Jr. has not provided any basis for reversing the court's final order. His claim of extrinsic fraud lacks supporting analysis or argument and was not raised in the probate court, and as a result we will not consider it or grant his request for judicial notice. (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11 ["we ignore arguments, authority, and facts not presented and litigated in the trial court"]; City of San Diego v. Rider (1996) 47 Cal.App.4th 1473, 1493 ["A new theory on appeal is [] waived when [it] involves a controverted factual situation not put in issue below"]; In re Jordan R. (2012) 205 Cal.App.4th 111, 126, fn. 15 ["An appellate court can deem an argument waived if it is not supported by analysis or argument in the appellate briefs"].)
We note the documents Ronald Jr. asks us to review - most of which appear to be redacted police reports - were never presented to the probate court and do not support his allegations on appeal in any event. --------
But even were we to consider the merits of Ronald Jr.'s claim, we would find it fails for obvious reasons. Extrinsic fraud involves the prevention of a party from participating in a legal proceeding by, for example, actively concealing the proceeding or knowingly failing to provide notice of it. (E.g., In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1069.) Here, Ronald Jr., was aware of and participated in the probate proceedings from the beginning. Indeed, it was he and his mother who repeatedly failed to provide notice of their filings to Ronald Sr., not the other way around.
III
DISPOSITION
We affirm the judgment. Appellant shall bear costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. FIELDS
J.