Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. GP012006 Candace J. Beason, Judge.
Brown & Associates and Matthew C. Brown for Objectors and Appellants.
Law Office of Michael J. O’Brien and Michael J. O’Brien for Petitioner and Respondent.
KITCHING, J.
INTRODUCTION
The beneficiaries of a trust allege that their stepmother wrongly removed real property at 1147 Volante Drive in Arcadia, California from the trust and transferred ownership of that property to herself, and after her death, the personal representative of her estate sold the property for less than it was worth. The trust beneficiaries appeal from an order confirming the sale of the property. The trust beneficiaries, who are termed Objectors, identify multiple violations of Probate Code statutes by the personal representative. The second report of sale and petition for order confirming sale of real property filed on January 22, 2009, did not comply with Probate Code section 10304, subdivision (a)(1). The personal representative was required to serve pleadings on the Objectors’ counsel, who had filed a request for special notice pursuant to section 1252. The personal representative failed to serve two reports of sale and petitions for order confirming sale of real property, three supplements to petition for sale of real property, and proof of publication of notice of sale of real property. The personal representative also violated section 8803 by failing to serve an inventory and appraisal on Objectors’ counsel. These failures to provide notice of documents denied Objectors due process and violated statutory notice requirements. Defective service in violation of statutory provisions governing a probate proceeding is jurisdictional. The violations of statutory notice requirements and of due process require reversal of the order confirming sale of real property.
Unless otherwise specified, statutes in this opinion will refer to the Probate Code.
FACTUAL AND PROCEDURAL HISTORY
Richard Tash, Brian Tash, and Larry Tash (Objectors) are sons of Jack Tash, who before he died on November 1, 2004, was the husband of Elaine Tash, the stepmother of Jack Tash’s sons. Before Jack Tash’s death, he and Elaine Tash held most of their assets in the Trust. Objectors are beneficiaries of the Tash Family Trust (the Trust), created by Jack Tash and Elaine Tash before Jack Tash’s death.
By a grant deed dated November 16, 2004, Elaine F. Tash, Successor Trustee of the Trust, granted real property known as 1147 Volante Drive, Arcadia California, to Elaine F. Tash.
Elaine Tash died on February 2, 2006. Harriet Goldfarb, sister of Elaine Tash and executor of her will, filed a petition for probate of will and for letters testamentary on March 7, 2006. On June 12, 2006, Harriet Goldfarb (Executor Goldfarb) was appointed Executor, with limited authority to administer the estate of Elaine Tash. That included property known as 1147 Volante Drive, Arcadia California, whose value a probate referee appraised at $950,000.
On September 29, 2006, the Objectors filed a creditor’s claim, which contended that some or all of the assets in the probate estate of Elaine Tash belonged to, or should have remained in, the Trust, that Elaine Tash wrongfully removed some or all of the Trust’s assets before her death, and that Elaine Tash was liable to the Objectors at the time of her death for wrongful removal of those assets from the Trust (Tash Creditor’s Claim). Also on September 29, 2006, Objector Brian Tash, as Successor Trustee of the Trust, filed a similar creditor’s claim on behalf of the Trust (Trust Creditor’s Claim).
On July 5, 2007, Executor Goldfarb served rejections of the Trust Creditor’s Claim and the Tash Creditors’ Claim.
Thereafter Objectors initiated an action against Harriet Goldfarb in Los Angeles County Superior Court, In the Matter of the Tash Family Trust No. GPO13279 (the Trust Matter) in connection with the creditors’ claims. Objectors alleged that Elaine Tash improperly removed or disposed of Trust assets, including the 1147 Volante Drive, property. The Objectors requested that the court order and determine, inter alia, Brian Tash to be trustee of the Trust; that the Trust is governed by the terms of the 1996 Trust Instrument as amended by the 2004 Trust Instrument; that the personal representative of the Elaine Tash probate estate account for Elaine Tash’s acts and transactions concerning the Trust and Trust assets from and after Jack Tash’s death; that assets in the Trust at the time of Jack Tash’s death and proceeds from sale of such assets should have remained in the Trust and should have been held and administered pursuant to its terms, up to and including the date of Elaine Tash’s death; that any assets improperly removed from the Trust, including any property now held in the probate estate of Elaine Tash, be delivered to Brian Tash as trustee of the Trust; and that Elaine Tash should be liable for damages caused by her breaches of fiduciary duty as the court might find after a hearing on the Trust accounting.
On September 9, 2008, the trial court found that Elaine Tash violated her fiduciary duties to the Trust beneficiaries; that there was a pro tanto community interest in business property, determined as 80 percent community property and 20 percent separate property; and that the Trust and the estate were totally intertwined within each other. The court found for the Objectors, and found that an earlier $645,432.92 surcharge finding was subject to interest at 10 percent from the date of death of Elaine Tash. The court denied the request for punitive damages against the estate.
Appellants’ opening brief states that a subsequently entered judgment was attached to the opening brief as Exhibit A, but no such exhibit accompanies the opening brief. That matter is now the subject of a separate appeal pending in this court.
Objector’s counsel, Matthew C. Brown, filed a request for special notice on September 29, 2006.
On December 5, 2008, Executor Goldfarb filed a report of sale and petition for order confirming sale of real property at 1147 Volante Drive, Arcadia, California, for $625,000. This document was not served on Objector’s counsel.
A hearing set for January 16, 2009, was continued to February 13, 2009, because of defects and omissions in the report of sale and petition, including a failure to notice Objectors’ attorney and lack of published notice of sale.
On January 22, 2009, Executor Goldfarb filed a second report of sale and petition for order confirming sale of real property at 1147 Volante Drive in a private sale for $625,000 to buyer Sidney Goldfarb. The January 22, 2009 report of sale and petition did not disclose that Sidney Goldfarb was Executor Goldfarb’s son and Elaine Tash’s nephew. Appellant Objectors also allege that Executor Goldfarb’s report and petition falsely alleged that the property had an appraised value of $850,000 as of Elaine Tash’s date of death, citing a $950,000 appraised valuation of that property in Executor Goldfarb’s inventory and appraisal filed on August 1, 2006 The second report of sale and petition for order confirming sale of real property was not served on Objector’s counsel.
Also on January 22, 2009, Executor Goldfarb filed a first supplement to petition for sale of real property amending the December 5, 2008, report of sale. This document was not served on Objector’s counsel.
In a second supplement to sale of property filed on February 10, 2009, the attorney for Executor Goldfarb alleged, inter alia, that: publication had been arranged and proof of publication would be filed when obtained from the Daily Journal; the correct appraised value should have been $950,000 and petitioner’s counsel erroneously used the value from the petition, but a reappraisal from the probate referee was completed and would be filed when received; and notice was provided. This document was not served on Objector’s counsel.
On February 13, 2009, in a third supplement to sale of property, the attorney for Executor Goldfarb alleged that an overbid calculation should be changed to $657,200; proof of publication would be filed with the supplement; conceded that Sidney Goldfarb was related to Executor Goldfarb and to decedent Elaine Tash; and stated that consents to the sale were being obtained and would be filed at the time of the hearing. This document was not served on Objector’s counsel.
On February 13, 2009, counsel for Executor Goldfarb filed an inventory and appraisal reflecting a probate referee’s February 9, 2009, reappraisal of the 1147 Volante Drive property at $825,000. This document was not served on Objector’s counsel.
On February 13, 2009, Executor Goldfarb filed a proof of publication of a Notice of Sale of Real Property at Public Sale in the Daily Commerce newspaper on February 3, 4, and 10, 2009. This document was not served on Objector’s counsel.
On February 13, 2009, Objectors Richard Tash, Brain Tash, and Larry Tash filed preliminary objections to sham report of sale and petition for order confirming sale of real property to personal representative’s child. It alleged that objectors’ claims against the estate of Elaine Tash would likely exceed the total value of the assets of the estate, and that the real property at 1147 Volante Drive that is subject to the petition was currently listed for sale for $975,000; that Petitioner Harriet Goldfarb proposed to sell the property to Sidney Goldfarb, her child, for $350,000 less than the listing price; that the proposed sale was a sham and an attempt by Executor Goldfarb to make a fraudulent transfer of the property to her relative to deplete assets of the estate so that Objectors would recover less than they were entitled to as a result of their successful litigation of their creditors’ claims. Objectors requested that the petition be denied, or alternatively that the hearing on the petition be continued for 90 days for Objectors to discover the true value of the property.
At the hearing to confirm the sale of property on February 13, 2009, the trial court granted the petition to confirm a sale for $657,200 to overbidders Kam F. Mar and Margaret M. Mar as joint tenants.
On February 13, 2009, Objectors filed a timely notice of appeal from the February 13, 2009, order.
On May 5, 2009, an order confirming the sale of real property, signed by the trial court, was filed.
The May 5, 2009, order confirming sale of real property is an appealable order pursuant to Probate Code section 1300: “In all proceedings governed by this code, an appeal may be taken from the making of, or the refusal to make, any of the following orders: (a) Directing, authorizing, approving, or confirming the sale, lease, encumbrance, grant of an option, purchase, conveyance, or exchange of property[.]”
ISSUES
Objectors claim on appeal that the order confirming the sale of real property should be reversed because:
1. Publication of the notice of sale was false and defective;
2. Objectors were never served with pleadings and related documents pertaining to matters that were the subject of the February 13, 2009, hearing;
3. Executor Goldfarb did not verify the second report of sale and petition for order confirming sale of real property.
DISCUSSION
1. Violation of Statutory Notice Requirements and of Due Process Requires Reversal of the Order Confirming Sale of Real Property
There were serious failures to comply with statutory requirements because of the lack of service of multiple documents on Objectors. Objectors claim they were not served with copies of the first, second, and third supplements to petition for sale of real property, the Inventory and Appraisal (Reappraisal for Sale) or the Proof of Publication of Notice of Sale of Real Property at Public Sale.
On September 29, 2006, Objectors’ counsel, Matthew C. Brown, filed a request for special notice pursuant to section 1250 for “all matters for which special notice may be requested.” Section 1252 states: “(a) Unless the court makes an order dispensing with the notice, if a request has been made pursuant to Section 1250 for special notice of a hearing, the person filing the petition, report, account, or other paper shall give written notice of the filing, together with a copy of the petition, report, account, or other paper, and the time and place set for the hearing, by mail to the person named in the request at the address set forth in the request, at least 15 days before the time set for the hearing.
“(b) If a request has been made pursuant to Section 1250 for special notice of the filing of an inventory and appraisal of the estate or of the filing of any other paper that does not require a hearing, the inventory and appraisal or other paper shall be mailed not later than 15 days after the inventory and appraisal or other paper is filed with the court.”
The report of sale and petition for order confirming sale of real property, filed on December 5, 2008, was not served on Objectors’ counsel.
The report of sale and petition for order confirming sale of real property, filed on January 22, 2009, was not served on Objectors’ counsel.
The first supplement to petition for sale of real property, filed on January 22, 2009, was not served on Objectors’ counsel.
The second supplement to petition for sale of real property, filed on February 10, 2009, was not served on Objectors’ counsel.
The third supplement to petition for sale of real property, filed on February 13, 2009, was not served on Objectors’ counsel.
Proof of publication of notice of sale of real property, filed on February 13, 2009, was not served on Objector’s counsel. The failure to serve these documents on Objectors’ counsel violated section 1252.
The inventory and appraisal, filed on February 13, 2009, was not served on Objector’s counsel. The failure to serve this document on Objectors’ counsel violated section 8803, which states: “On the filing of an inventory and appraisal or a supplemental inventory and appraisal, the personal representative shall, pursuant to Section 1252, mail a copy to each person who has requested special notice.”
These multiple failures to provide timely, written notice of documents denied Objectors due process and violated statutory notice requirements. Executor Goldfarb argues that section 10316 makes the order confirming the sale valid, despite defects in the proceedings. Section 10316 states: “No omission, error, or irregularity in the proceedings under this article shall impair or invalidate the proceedings or the sale pursuant to an order made under this article.” A probate court having jurisdiction of an estate acts in excess of jurisdiction if it fails to follow statutory provisions governing, in this case, a proceeding to confirm the sale of real property, and section 10316 does not cure this defect. Curative statutes do not cure lack of jurisdiction due to absence of notice constituting a violation of due process of law. (See Texas Co. v. Bank of America etc. Assn. (1935) 5 Cal.2d 35, 43; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) Defective service is a jurisdictional defect. (Conservatorship of Delay (1988) 199 Cal.App.3d 1031, 1038-1039.)
The violations of statutory notice requirements and of due process require reversal of the order confirming sale of real property.
2. Lack of Verification Provides an Additional Ground for Reversing the Order Confirming Sale of Real Property
Objectors claim that the report of sale and petition for order confirming sale of real property filed on January 22, 2009, and supplements to that report, were not personally verified by Executor Goldfarb as required by sections 1021 and 1023 and by California Probate Rules, rule 7.103(b).
Section 1021 states, in relevant part: “(a) All of the following shall be verified:
California Rules of Court, rule 7.103 states: “(b) All pleadings filed in proceedings under the Probate Code must be verified. If two or more persons join in a pleading, it may be verified by any of them.
The January 22, 2009, report of sale was verified with the signature of Harriet Goldfarb “by Michael O’Brien,” Executor Goldfarb’s attorney. O’Brien also signed the first, second, and third supplements to the petition for sale of real property.
Lack of verification of a return and petition for confirmation of an administrator’s private sale of real property is a defect in pleading and is not held to be jurisdictional, and objection to lack of verification is waived “if not raised at the noticed probate hearing.” (Estate of Conner (1964) 227 Cal.App.2d 157, 159.) Here the pleadings which were not verified were not served on Objectors, which excuses their failure to raise the issue at the hearing. Thus the defects provide an additional ground for reversing the order confirming the sale of real property.
3. Publication of the Notice of Sale Did Not Comply With Section 10304, Subdivision (a)(1), and Sale of the Property on February 13, 2009, Was Void
The June 12, 2006, order for probate appointed Harriet L. Goldfarb personal representative with limited authority to administer the estate of Elaine Frances Tash under the Independent Administration of Estates Act (§ 10400 et seq.). Executor Goldfarb was required to obtain court supervision for the sale of real property.
Section 10501, subdivision (b) states: “Notwithstanding any other provision of this part, a personal representative who has obtained only limited authority to administer the estate under this part is required to obtain court supervision, in the manner provided in this code, for any of the following actions: [¶] (1) Sale of real property[.]” “Limited authority” means “authority to administer the estate under this part that includes all the powers granted under this part except the power to do any of the following: [¶] (a) Sell real property.” (§ 10403, subd. (a).) “Court supervision” means “the judicial order, authorization, approval, confirmation, or instructions that would be required if authority to administer the estate had not been granted under this part.” (§ 10401.)
The sale of the real property at 1147 Volante Drive had to comply with the notice requirements of section 10300.
Regarding the sale of real property of an estate, section 10300 states:
Objectors claim that the notice requirements of section 10304, subdivision (a)(1) were not satisfied. Section 10304, subdivision (a)(1) states, In relevant part: “(a) The notice of sale given pursuant to this article shall state all of the following:
“(1) Whether the sale is to be a private sale or a public auction sale.”
Objectors cite the second report of sale and petition for order confirming sale of real property, filed on January 22, 2009, stating that the 1147 Volante Drive property was sold in a “private sale” on November 25, 2008, to Sidney Goldfarb for $625,000. Thus the published notice of sale falsely stated that the 1147 Volante Drive property was to be sold “at public sale” on February 13, 2009.
“[P]roceedings for the sale of the real property of a decedent are statutory, and... such a sale will be void unless the requirements of the statute are complied with.” (Hellman v. Merz (1896) 112 Cal. 661, 666.) Publication of the notice of sale did not comply with section 10304, subdivision (a)(1), and the sale of the property on February 13, 2009, was void.
DISPOSITION
The order confirming sale of real property entered on May 5, 2009, is reversed. Costs on appeal are awarded to Objectors Richard Tash, Brian Tash, and Larry Tash. Pursuant to the parties’ stipulation, the Clerk of the Court is directed to issue the remittitur immediately upon the filing of this opinion (Cal. Rules of Court, rule 8.272(c)(1)).
We concur: CROSKEY, Acting P. J.ALDRICH, J.
Although the notice of appeal was from the February 13, 2009, minute order, the May 5, 2009, order, signed by the trial court, was the appealable order. We construe the premature notice of appeal from the interim order to have been filed after entry of the final order. (Cal. Rules of Court., rule 8.104(e); Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219, fn. 6.)
“(1) A petition, report, or account filed pursuant to this code.
“[¶]... [¶]
“(b) Except as provided in Section 1023, the verification shall be made as follows:
“[¶]... [¶]
“(2) A report or account shall be verified by the person who has the duty to make the report or account.... ”
“(c) If a person is absent from the county where his or her attorney’s office is located, or for some other cause is unable to sign or verify a pleading, the attorney may sign or verify it, unless the person is, or is seeking to become, a fiduciary appointed in the proceeding.” A probate executor, such as Harriet Goldfarb, is a fiduciary. (Shannon v. Superior Court (1990) 217 Cal.App.3d 986, 992.)
“(a) Except as provided in Sections 10301 to 10303, inclusive, and in Section 10503, real property of the estate may be sold only after notice of sale has been published pursuant to Section 6063a of the Government Code (1) in a newspaper published in the county in which the real property or some portion thereof is located or (2) if there is no such newspaper, in such newspaper as the court or judge may direct.
“(b) The publication of notice of sale shall be completed before:
“(1) In the case of a private sale, the day specified in the notice as the day on or after which the sale is to be made.
“(2) In the case of a public auction sale, the day of the auction.”
The exceptions referred to in subdivision (a) (sections 10301 to 10303 and section 10503) do not apply to this sale of real property.