Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 285312
Haerle, J.
I. INTRODUCTION
This is the second round in a probate dispute between the daughter (respondent) and second wife (appellant) of the decedent, Elie Tzortzatos. Appellant appeals from the probate court’s Order of Final Distribution of decedent’s estate entered on January 23, 2008, claiming that that court should have found a community property interest in a residential property owned by decedent in the Sunset District of San Francisco. We disagree and hence affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
What follows is, at least preliminarily, derived from our first opinion in this case. (Li v. Tzortzatos (Nov. 2, 2006, A111683) [nonpub. opn.].)
“Decedent and appellant were married in San Francisco on January 23, 1998. At that time, decedent was 69 years old and appellant was 42. Both were immigrants to this country. Decedent immigrated from Greece, via Belgium, and was employed for many years in the housekeeping department of San Francisco’s St. Francis Hotel. Decedent became a U.S. citizen in December 1997.
“When he immigrated to the United States, decedent was married to a woman he had met in Belgium. In 1978, they bought the house which is the principal subject of this litigation. It is located at 2123 46th Avenue in San Francisco’s Sunset District.
“Decedent had a daughter by his first wife, and that daughter is the respondent in this case. She in turn had a daughter, the decedent’s only grandchild. In 1987, decedent divorced his first wife and, in the process, bought out her interest in the Sunset District home.
“Appellant came to the United States from Hong Kong as a tourist in 1991 and remained as, first, a student studying at several Bay Area colleges and, since 1994, as a teacher with first the San Francisco Unified School District and later the Oakland School District. Before coming to San Francisco, she received a degree in sociology from a university in Hong Kong and later taught elementary school in Hong Kong, sometimes teaching partially in English.
“Appellant and decedent, then about 65, met at a 1992 San Francisco ‘street faire’ and struck up a friendship. They did not, however, start seeing each other frequently until ‘[a]bout 1994.’ During that interim, appellant developed ‘a romantic relationship’ with a Laney College tutor and married him in 1993. They never lived together, however, and were divorced in 1995.
“As noted, appellant and decedent started dating in 1994, while appellant was still married to her former tutor. By the following year, 1995, she and decedent had ‘a very good commitment,’ although they did not then plan on marrying. They did, however, go to Hong Kong that year and returned with appellant’s nine year old daughter. Appellant and her daughter stayed for a while at decedent’s Sunset District home and then moved to first one and then a second rental unit in the same general area. During this period, appellant also spent time with decedent at his 46th Avenue home.
“Sometime in 1997, appellant and decedent started talking ‘about getting married.’ According to the testimony of respondent, decedent’s daughter, the decedent told her he decided on this course of action ‘[t]o help [appellant] to stay in this country,’ because the latter had allegedly indicated a strong desire to secure a ‘green card’ and become a permanent resident of the U.S. Appellant, in her testimony, did not concede that such was a motivation for the marriage, only that she and decedent had become ‘very serious’ about their relationship by ‘about '97.’
“On January 13, 1998, ten days before they were actually married, appellant and decedent went to a notary public in San Francisco’s Chinatown who, then and there, prepared a premarital agreement for them both to sign. According to appellant, decedent said he wanted her to sign such a document to ‘show my love’ for him. The premarital agreement reads as follows:
“‘We, ELIE TAORTZATOS [sic] and WAI LING LI, will register marriage in San Francisco, CA U.S.A. in January 1998. Before registering marriage, now both parties have come to the following agreements:
“‘1. No matter what happen in the future, such as divorce or decease, one party cannot seek any interests or go after any assets like real property, saving, stocks etc[.] both in and outside the United States from the other party, which were acquired before marriage. [¶] 2. If the marriage is terminated some time in the future, everything is subject to the California divorce regulation regarding the assets acquired by both parties during the period of marriage.’
“After executing the agreement, the decedent told his daughter that he had done so ‘to protect his house.’
“Decedent and appellant married ten days later, on January 23, 1998. Subsequently, decedent signed all the documents necessary for appellant to secure permanent residential status, and appellant became a permanent resident in March, 2001.
“The record is conflicting about the relationship of the parties after their marriage. According to respondent’s version of the events, at least until 2001, appellant and her daughter lived nearby, but not in the 46th Avenue home of decedent. In February 2001, appellant was evicted from her apartment and moved into the downstairs ‘in-law’ unit in the 46th Avenue property. But, respondent maintained, appellant did not live in the upstairs part of the property with decedent. According to respondent, appellant and decedent did not live in the same ‘housing unit’ until after decedent was ill and hospitalized. By that time, respondent and her daughter were no longer living with decedent and appellant moved upstairs without permission.
“Appellant’s version of her post-marriage relationship with decedent was somewhat, but not entirely, different. She testified that, after the marriage, she lived with the decedent and also lived in a separate apartment with her daughter. She maintained that she and the decedent kept the separate apartment because it was convenient and because her daughter and mother needed a place to stay. According to appellant, she and decedent shared their assets and she supplied most of the income for the two of them and her daughter from her employment as a school teacher because, according to her, decedent was receiving only a small disability and pension income. They also filed joint tax returns.
“In 2002, the decedent apparently could not find his copy of the premarital agreement, concluded that appellant had taken it, and asked her to sign another copy, which she refused to do. After this, decedent filed for legal separation from appellant; she cross-filed for dissolution and moved out of the house in May 2002. Although those two legal actions were, apparently, never pursued, respondent contends that her father believed that his marriage to appellant was terminated. Appellant contends, however, that she and decedent reconciled in June 2002.
“The decedent suffered a stroke and was hospitalized in the summer of 2003. He died on October 14, 2003. Appellant filed a petition for letters of administration and, also, a spousal property petition. Respondent filed a petition for probate of decedent's will, which left his entire estate to her. The latter petition was granted and decedent’s will admitted to probate.
“Appellant then filed a petition for determination of entitlement to estate distribution, claiming to be an omitted spouse. After a court trial lasting a little over two days and including testimony from both appellant and respondent, the court filed a nine-page revised statement of decision agreeing with respondent’s position that the premarital agreement was valid and binding. That statement of decision was followed by an order denying appellant’s Spousal Property Petition and Entitlement to Estate Distribution petition. Appellant filed a timely notice of appeal.”
As noted above, we affirmed the probate court’s order by our unpublished opinion of November 2, 2006. Appellant filed a petition for review of our decision with our Supreme Court, which denied it on February 13, 2007.
Albeit not noted in our prior decision, appellant’s 2003 and 2004 probate court petitions included a claim for half of the community property acquired during the parties’ marriage and reimbursement for her separate property funds used for improvements to the Sunset District property during their marriage. At a hearing on December 13, 2004, the trial court determined to bifurcate the issues raised by appellant’s petitions and deal first with the issue of the validity of the premarital agreement. It did so and issued its decision thereon in July 2005, the decision we affirmed in 2006. It did not deal with appellant’s community property claims at that trial or in its July 2005 order. Nor were those claims pursued by appellant during the 19 months between the date of that order and our Supreme Court’s February 2007 denial of appellant’s petition for review.
In March 2007, appellant served a subpoena for documents relating to mortgage payments on decedent’s bank; those documents were apparently produced by the bank in December 2007. No other action was taken by appellant regarding the unresolved aspects of appellant’s 2003 and 2004 petitions until after the filing by the estate administrator of a petition requesting an order of final distribution on November 13, 2007.
In response to that filing, on December 12, 2007, appellant filed an objection to that petition, arguing that her original claims to part of the community property and various other issues, e.g., her creditor claims, remained unresolved.
Prior to the hearing on the administrator’s petition, that administrator approved one of appellant’s creditor claims––for decedent’s burial expenses. Respondent later objected both to this and appellant’s community property claims.
At a hearing held on January 14, 2008, the probate court heard argument from all three counsel for the relevant parties, i.e., for the administrator, the respondent, and appellant. It heard and rejected appellant’s counsel’s argument that the court had not considered the reserved aspects of appellant’s 2003 and 2004 petitions. It then overruled her objections to the petition for final distribution and entered an order approving that petition.
Appellant filed a notice of appeal four days later.
III. DISCUSSION
The first issue the parties debate in their briefs to us is our standard of review of an order such as the one precipitating this appeal. Citing the recent case of Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528-529 (Ferraro), appellant asserts we should give de novo review to the probate court’s order. To the contrary, and citing Estate of Lock (1981) 122 Cal.App.3d 892, 902 (Lock), respondent asserts that our standard is abuse of discretion.
Respondent is clearly correct as a case cited by neither party makes clear. In Estate of Toler (1957) 49 Cal.2d 460 (Toler), our Supreme Court was presented with a dispute involving a “preliminary distribution” of $200,000 approved by the Orange County probate court which was overseeing the estate of decedent Jessie Lee Toler. That decedent’s will had bequeathed a life estate in the “‘rest and residue’” of decedent’s estate to Benjamin E. Toler, then an incompetent person albeit with a guardian. (Id. at p. 462.) Once the chief asset of the estate, a citrus ranch, was sold for $290,000, the guardian filed a petition on behalf of the decedent’s brother for a distribution of $200,000 as a life estate for the brother. Although objected to by another legatee, the probate court approved that distribution and a unanimous Supreme Court affirmed in an appeal by the objecting legatee. (Id. at pp. 463-464.) In the course of so doing, it made clear that the standard of review of such an order was, as contended by respondent here, abuse of discretion: “In the absence of a clear showing that the probate court abused its broad discretion in concluding that the estate was in such condition that the preliminary distribution could be safely made, its determination in that regard may not be reversed on appeal . . . .” (Toler, supra, 49 Cal.2d at p. 468; see also, Lock, supra, 122 Cal.App.3d at p. 902, and Estate of Fields (1949) 94 Cal.App.2d 233, 238.)
The case appellant relies on in urging that we give the probate court’s order strict, de novo review is not even remotely applicable. In Ferraro, the Sixth District Court of Appeal reversed an order of the Santa Clara County Superior Court which had stricken a complaint filed by the appellant, a complaint which mirrored an earlier claim which had been denied by a probate court. The Court of Appeal ruled that the trial court’s order was erroneously denominated an order “striking appellant’s complaint” (Ferraro, supra, 161 Cal.App.4th at p. 528) and that, in reality it was an “order . . . sustaining . . . a demurrer without leave to amend.” (Id. at p. 529.) As such, the Court of Appeal ruled––obviously correctly––the order was subject to de novo review. That ruling is not even close to the present case, which involves the approval of a petition for final distribution of an estate and, in the course thereof, the rejection of an objection thereto.
We find no abuse of discretion here. In the first place, as both the Probate Code and well-established judicial precedent based on it make clear, prompt resolution of disputes over estate distribution and administration is, and always has been, an important goal. As our Supreme Court declared many decades ago, there is an “established policy favoring prompt distribution of estates . . . .” (Estate of Taylor (1967) 66 Cal.2d 855, 858; see to the same effect: Toler, supra, 49 Cal.2d at pp. 467, 469; Estate of Heller (1992) 7 Cal.App.4th 862, 867 [noting a “strong public policy in favor of the prompt closing and distribution of estates”]; Estate of Justesen (1999) 77 Cal.App.4th 352, 365 [same].)
This strong public policy clearly provides the rationale for sections 12200-12206 of the Probate Code, added by statute in 1988 but based on long-standing prior provisions of that Code (specifically former sections 1025.5 and 1026). Those provisions require the administrator or executor of an estate to file a petition for final distribution of the estate or file “a report of status of administration not later than” 18 months after the issuance of the letters of administration (§ 12200), and if he, she, or it does not do so, to face potential orders to show cause––or even more strict sanctions, including removal from office––from the probate court. (See §§ 12202, 12204, 12205.)
All statutory references are to the Probate Code.
Here, as noted above, the trial court bifurcated the separate property and community property issues in appellant’s 2003 and 2004 petitions and decided only the former by its July 2005 decision and order, a decision and order we affirmed in November 2006, and as to which our Supreme Court denied review three months later. But although appellant was, according to the record before us, living in the house as to which she claims a community property interest most of that time, she never asked the probate court to take up the community property part of her 2003 and 2004 petitions. The closest she came to doing so was the filing of her December 12, 2007, objections to the administrator’s petition to close the estate. And even then, the first item raised in those objections was that she wanted to be reimbursed $13,468.75 for burial expenses of the decedent. Only thereafter did she raise, for the first time in over four years, the issue of a post-marriage community property interest in the Sunset District property. And those objections were unaccompanied by any evidence at all regarding the contribution of appellant to the community property value of that property.
Which was allowed by the administrator.
At the January 14, 2008, hearing on the petition for final distribution, appellant’s counsel noted that, allegedly on April 27, 2007, she served a subpoena duces tecum on the mortgagee, Washington Mutual, for records showing the “mortgage history” regarding that property, but only received the requested records on December 31, 2007. Counsel never offered those records into evidence at the January 14, 2008, hearing, and indeed never mentioned the efforts to secure those records in the course of appellant’s three-page objection to the final distribution petition. Instead of doing either, on June 18, 2008, appellant moved this court to take judicial notice of three sets of documents: (1) a March 1, 2007, notice to the estate administrator that appellant was seeking the mortgage records, (2) a “Deposition Subpoena for Production of Business Records” addressed to Washington Mutual Bank also issued on March 1, 2007, and apparently served on that institution on March 13, 2007, and (3) a letter dated December 27, 2007, from a Washington Mutual office in South Carolina to appellant’s counsel allegedly enclosing “a copy of the documents you requested in your Subpoena.” However, the only thing attached to the Washington Mutual letter that was supplied to us is a copy of the “Deposition Subpoena” served on it. By our order of July 10, 2008, we took appellant’s motion for judicial notice under submission. We now grant appellant’s motion and take judicial notice of the attachments to it. However those attachments provide exactly zero evidence of the existence of any community property interest of appellant in the Sunset District property that was or could have been presented to the court below, and thus our grant of the motion for judicial notice accomplishes nothing in appellant’s favor.
Twice in the course of the January 14, 2008, hearing, the lower court commented that it was “awfully late in the game” to be bringing up the community property issue. Appellant’s counsel responded to this by noting, correctly, that that issue had been raised in appellant’s 2003-2004 petitions to the court, albeit never tried. She commented that “[i]n hindsight it might have been better to try [the two issues] both at the same time, but that was not the case.”
In overruling appellant’s objections to the petition for final distribution, the trial court stated that “[t]here is no petition before the court at this time” from appellant, only her objections. This was, obviously, incorrect. As noted above, appellant’s 2003 and 2004 petitions raised the community property issue. But it was appellant’s responsibility––starting as early as the probate court’s July 2005 ruling on the validity of the premarital agreement––to bring any and all reserved issues to the attention of the court for prompt resolution.
However, appellant did nothing for 19 months while the premarital agreement issue was being appealed and for another 10 months after it had been finally resolved. She finally filed something regarding the community property issue only in response to the administrator’s petition for final distribution. Such a substantial delay is both inconsistent with the policy of resolving estate administration issues promptly and constitutes laches, a doctrine clearly applicable in probate court. (Cf. § 9154, subd. (b) and Getty v. Getty (1986) 187 Cal.App.3d 1159, 1170.) For these reasons, the probate court did not abuse its discretion in denying her opposition to the petition for final distribution and in not, on its own motion, reopening that portion of appellant’s original petitions not resolved in 2005.
Except serve the subpoena duces tecum on the mortgagee in March 2007.
IV. DISPOSITION
The order appealed from is affirmed.
We concur: Kline, P.J., Lambden, J.