Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RP05195128
Margulies, J.
Jitkorn Meechai appeals from orders entered after trial (1) denying his petition for a distribution to him of the estate of decedent, Seath Lamar Simmons, who died intestate in 2004; and (2) denying his request for a statement of decision. The trial court found Meechai’s evidence that Simmons legally adopted him under the laws of Thailand in 1972 insufficient to support granting the petition. We affirm the challenged orders.
I. BACKGROUND
Decedent died intestate on December 11, 2004. On or about March 2, 2005, Ruby M. Slaughter, decedent’s sister, was appointed by the probate court to act as the administrator of decedent’s estate.
In March 2007, Meechai, a resident of Thailand, filed a petition, verified by his attorney, alleging that he is decedent’s adopted son, and is entitled to decedent’s entire estate. The petition attached documents written in the Thai language, with attached English translations, purporting to be official Thai governmental records showing that (1) decedent adopted Meechai in Thailand in 1972, when decedent was 61 years old and Meechai was 24 years old; and (2) in 1993, Meechai changed his first name from Kwaunkit, the name that appeared on the registration of adoption, to Jitakorn. The petition also attached copies of items of correspondence allegedly sent by decedent to Meechai, consisting of some photographs of decedent and his pets, with handwriting on the back, and an envelope postmarked December 1994, hand-addressed to “Mr. Louis & Family,” with an address label imprinted with decedent’s name and address placed in the return address corner of the envelope. In April 2007, Slaughter filed a statement of interest in the estate requesting a determination that she was entitled to distribution of the entire estate.
At trial, over Slaughter’s hearsay objection, the trial court admitted into evidence copies of these records bearing original stamps and signatures purporting to show that (1) a named official in the Ministry of Foreign Affairs of Thailand had seen the documents; (2) the consul (or vice-consul) of the United States in the United States Embassy in Bangkok certified that the named Thai official was in fact a diplomatic officer in the Ministry of Foreign Affairs of Thailand “to whose official acts faith and credit are due”; and (3) the translation was “certified correct” by the translator.
Meechai’s counsel represents that Meechai was also known as Jitkorn Meechai and Louis Meechai.
Meechai’s petition was set for a court trial on January 15, 2008. Meechai was represented by counsel at the trial but he did not appear personally. In addition to the adoption registration and name change documents described above, the trial court admitted the following additional exhibits in evidence: (1) a Christmas card to Meechai and his family and the original of the envelope postmarked December 1994, in which it had apparently been enclosed; (2) an undated Easter card containing the printed greeting, “For a Special Son and Daughter-in-Law,” and signed with the word “Dad,” printed by hand; (3) an undated “Thinking of You” greeting card signed, “Love, Dad,” and handwriting making reference to an earlier card sent by Meechai and a phone call from him; (4) originals of the photographs, copies of which had been attached to his petition, as well as an additional pet photograph with handwriting on the back; (5) an expired Thai passport issued to Kwaunkit Meechai in 1989. The court had also taken judicial notice in earlier proceedings of excerpts from an English translation of the Thai Civil and Commercial Code.
The sole witness at the trial was Slaughter, called initially by Meechai’s counsel. Slaughter identified the handwriting on the cards, envelope, and photographs as decedent’s. On direct examination by her own counsel, Slaughter testified that the decedent did not speak or understand the Thai language. No evidence was presented regarding the circumstances under which the decedent adopted Meechai, and there was no testimony regarding the extent of the contact decedent had with Meechai between 1972 and decedent’s death in 2004, beyond that shown by the items of correspondence put in evidence.
Following argument by both sides, the trial court declared the matter submitted and advised the parties from the bench that it was denying the petition because it found the evidence insufficient to support it. The court denied Meechai’s counsel’s ensuing request for a statement of decision, and denied a written motion for a statement of decision filed after trial. A written order denying Meechai’s petition to determine his entitlement to the estate was filed on February 15, 2008, and this timely appeal followed.
II. DISCUSSION
Meechai contends the trial court abused its discretion by arbitrarily disregarding the evidence before it. In the alternative, he argues that the court erred in denying his request for a statement of decision and that appellate review on the merits of the decision should be deferred and the case remanded for preparation of a statement of decision.
A. Abuse of Discretion in Weighing the Evidence
Meechai maintains in essence that the judgment must be reversed because his evidentiary showing, at least in the absence of contrary evidence, compelled a judgment in his favor. For a number of reasons, we do not find that to be the case.
Meechai concedes that the burden was on him to prove by a preponderance of the evidence that he was entitled to inherit the decedent’s estate. (Evid. Code, §§ 115, 500.) As a corollary, if Meechai failed to meet his burden of proof, the administrator was under no burden to come forward with any evidence rebutting his claim in order to prevail. Meechai further concedes that the trier of fact is not compelled to accept a party’s evidence at face value, but may give such evidence only the weight and effect to which it concludes the evidence is entitled. (LeFlore v. Grass Harp Productions, Inc. (1997) 57 Cal.App.4th 824, 836; Estate of Blair (1954) 126 Cal.App.2d 759, 762.)
We will find abuse of discretion only if the trial court exceeded the bounds of reason, taking all of the circumstances into account. (Loomis v. Loomis (1960) 181 Cal.App.2d 345, 348.) “The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.” (Id. at pp. 348–349.)
As an initial matter, Meechai argues that he was under no burden to prove that he, in fact, survived the decedent by at least 120 hours. Probate Code section 6403, subdivision (a) states that “[a] person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for the purpose of intestate succession, and the heirs are determined accordingly.” That subdivision specifically provides that unless it can be “established by clear and convincing evidence that a person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person failed to survive for the required period.” (Italics added.) This language squarely places the onus on the petitioner to prove that he did not predecease the decedent. Meechai cites no law requiring the administrator to come forward with proof that he did not survive the decedent.
Meechai did not personally appear in the action, and his petition was verified by his attorney, not by him. The only witness called by Meechai at trial, Ruby Slaughter, denied that Meechai was alive. She offered no testimony to suggest that Meechai had survived her brother. The documentary evidence admitted at trial established, at most, that Meechai was alive in July 1993, when his name change was granted, and that the decedent believed Meechai was alive in December 1994, when he sent him a Christmas card. The documentary evidence does not establish that Meechai was alive on or after December 11, 2004, the date of decedent’s death. This failure of proof under Probate Code section 6403 is sufficient by itself to uphold the trial court’s judgment.
The expired passport put in evidence established at most that Meechai was alive when the passport was issued in June 1989, and when he traveled to Saudi Arabia later that year. The passport expired on June 12, 1994, and provides no evidence that Meechai was alive on or after that date.
A further gap in the evidence was that the documents evidencing the purported registration of the adoption were not properly authenticated or attested to in accordance with Evidence Code sections 1454 and 1530. Those sections require, in the case of a foreign official writing, that there be a chain of duly executed certifications “beginning with a certificate of the genuineness of the signature and official position of the person executing the writing.” The copy of the purported registration in this case was accompanied by (1) a final statement executed by an appropriate officer of the United States foreign service certifying the genuineness of the signature and official position of Mrs. Boonsom Watanapanee, a diplomatic officer in the Ministry of Foreign Affairs of Thailand; (2) an attestation by Mrs. Watanapanee, carrying the seal of the Ministry of Foreign Affairs, that she had “seen” documents purported to be a copy and translation of the original registration; and (3) a copy of the document purported to be the original registration record with a stamp signed by Mr. Noraset Sritaphatso, “Acting Sattahip District Chief,” attesting (as translated into English) that the document was a “true copy.”
Evidence Code section 1454 provides as follows: “A signature is presumed to be genuine and authorized if it purports to be the signature, affixed in his official capacity, of an officer, or deputy of an officer, of a nation or public entity in a nation recognized by the executive power of the United States and the writing to which the signature is affixed is accompanied by a final statement certifying the genuineness of the signature and the official position of (a) the person who executed the writing or (b) any foreign official who has certified either the genuineness of the signature and official position of the person executing the writing or the genuineness of the signature and official position of another foreign official who has executed a similar certificate in a chain of such certificates beginning with a certificate of the genuineness of the signature and official position of the person executing the writing. The final statement may be made only by a secretary of an embassy or legation, consul general, consul, vice consul, consular agent, or other officer in the foreign service of the United States stationed in the nation, authenticated by the seal of his office.” (Italics added.)
Evidence Code section 1530 provides that a purported copy of a writing in the custody of a foreign public entity is not prima facie evidence of the existence and content of such writing unless “the copy is attested as a correct copy of the writing or entry by a person having authority to make attestation. The attestation must be accompanied by a final statement certifying the genuineness of the signature and the official position of (i) the person who attested the copy as a correct copy or (ii) any foreign official who has certified either the genuineness of the signature and official position of the person attesting the copy or the genuineness of the signature and official position of another foreign official who has executed a similar certificate in a chain of such certificates beginning with a certificate of the genuineness of the signature and official position of the person attesting the copy.” (Italics added.)
These certifications fall short of the requirements of Evidence Code sections 1454 and 1530. There was no certification by the Thai diplomatic officer, Mrs. Watanapanee, of the genuineness of the signature and official position of Mr. Sritaphatso, and no attestation by Mr. Sritaphatso that the document was a true copy of a valid adoption registration maintained in his office. Based on this showing, it was within the trial court’s discretion to find that Meechai failed to make a prima facie showing that he was adopted in accordance with Thai law.
The court commented as follows in explaining its decision to deny the petition: “The best evidence is in Thailand . . . assuming he’s still there. [¶] And if it’s requiring me to really do a stretch on this . . . to patch those gaps . . ., I just don’t see it at this point.”
For these reasons, we hold that the trial court did not abuse its discretion in denying Meechai’s petition.
B. Statement of Decision
The trial in this case was completed in two hours. Code of Civil Procedure section 632 provides when a trial is “concluded within one calendar day or in less than eight hours over more than one day” a party’s request for a statement of decision “must be made prior to the submission of the matter for decision.” A nonjury matter is deemed submitted when “either of the following first occurs: [¶] (1) [t]he . . . court orders the matter submitted; or [¶] (2) [t]he . . . final paper is required to be filed or . . . argument is heard, whichever is later.” (Cal. Rules of Court, rule 2.900.) Case law has held that “a case is submitted for decision by the judge when all of the evidence has been received and all briefs or memoranda authorized to be filed after trial have been received.” (Mardikian v. Commission on Judicial Performance (1985) 40 Cal.3d 473, 477, fn. 2.)
Here, both parties were allowed to put in their evidence and make extensive oral argument to the court before the court ordered the matter submitted. After both sides advised the court on the record that they had put in all of their evidence, a short recess was taken so that Meechai’s counsel could make sure the clerk had all the exhibits that had been admitted. The court had previously informed the parties that it would hear argument after the close of evidence. The court had said nothing to indicate that any written briefs or submissions would be allowed after trial. Following the recess, Meechai’s counsel proceeded with his oral argument. After Slaughter’s counsel responded, the court invited Meechai’s counsel to offer a rebuttal argument. Following a brief colloquy regarding new evidence Meechai’s counsel sought to introduce during his rebuttal argument, the court asked counsel whether he had anything further to say in rebuttal. Meechai’s counsel proceeded with a few more remarks, and then ended his rebuttal argument with the words, “I rest, your Honor.” At that point, the court ordered the matter submitted, ruled from the bench that the petitioner’s evidence was insufficient, and denied the petition. Immediately after the court announced its ruling, Meechai’s counsel for the first time requested a statement of decision, which the court denied.
Meechai claims that his request for a statement of decision was timely under Code of Civil Procedure section 632 even though it was made after he had put in all of his evidence and ended his rebuttal argument, and after the court had ordered the matter submitted and announced its decision. He argues that because the court “unexpectedly” ruled from the bench, it was impractical for his counsel to request a statement of decision until the court completed its statement. Meechai relies principally on Social Service Union v. County of Monterey (1989) 208 Cal.App.3d 676. But in Social Service Union, the trial court announced its intended decision while the appellant’s counsel was still in the process of making his closing argument. (Id. at p. 680.) That was clearly not the case here.
As we see it, the issue is whether Meechai’s counsel “had fair warning to request the statement, if desired, before the case was submitted for decision.” (Gordon v. Wolfe (1986) 179 Cal.App.3d 162, 166.) He did. Counsel had no reason to assume when he ended his rebuttal argument and sat down that he would have any further opportunity to request a statement of decision. At that point, he knew the trial had taken only two hours, he knew there would be no further opportunity for oral argument, and he knew that nothing remained to be done before the court could properly order the matter submitted. It is not as if counsel had only a small window in which to request a statement of decision. He could have asked for it in writing in his trial brief. He could have mentioned it at the outset of trial, or after the close of evidence, or before he ended his rebuttal argument and sat down. With such minimal effort required for counsel to lodge his request and so many opportunities to get it done, we cannot fault the trial court for denying it as untimely. (See R. E. Folcka Construction, Inc. v. Medallion Home Loan Co. (1987) 191 Cal.App.3d 50, 55 [“[w]here it reasonably appears that a case will take less than a day, it is simple enough for counsel to ask for a statement of decision before the case is submitted”].)
III. DISPOSITION
The orders appealed from are affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.