Opinion
A131255
08-19-2011
Estate of GLORIA ROMAN GARDNER, Deceased. GLORIA HALSTAD, Petitioner and Respondent, v. WILLIAM R. GARDNER, Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. PRO120614)
Respondent Gloria Halstad was appointed executor of the will of her mother, decedent Gloria Roman Gardner, as nominated in that will. In so doing, the probate court rejected the application of Halstad's brother—appellant William R. Gardner—to be appointed executor or administrator. Acting in pro per, William Gardner appeals,contending that (1) the trial court erred in applying an incorrect statute of limitations and (2) Halstad was disqualified to serve as executor because of a conflict of interest. We affirm the probate order.
Gardner filed a timely notice of appeal from the probate order. (Cal. Rules of Court, rule 8.104(a).) The order granting Halstad's petition to be executor and rejecting his petition for appointment is appealable. (Code Civ. Proc., § 904.1, subd. (a)(1); Prob. Code, § 1303, subd. (a).)
I. FACTS
Decedent Gloria Roman Gardner died at the age of 90 in February 2010. The death certificate listed three causes of death: septic shock, ischemic bowel, and atherosclerotic disease. Gout, a urinary tract infection and type II diabetes were also listed as contributing factors.
Ischemic bowel is an inadequate blood supply to the intestines. It is more common among the elderly than other people, according to Wikipedia.
Gardner's September 1975 will left her estate in equal shares to her three children and nominated her daughter Gloria to be executor of the will. In November 2010, Gardner's eldest daughter Gloria Halstad (nee Gardner) petitioned to probate this will and to be appointed as executor, consistent with the terms of the will.
Halstad's brother William Gardner objected, filing his own petition for appointment as executor. He sought to bring a wrongful death action against the nursing home in which his mother had resided based on its failure to diagnose and treat her ischemic bowel disease. He reasoned that Halstad's expressed reluctance to bring a wrongful death action conflicted with an executor's affirmative duty to bring legal action for the benefit of the estate. He advised the court that an attorney had told him that a wrongful death action could not proceed unless all the siblings agreed to the action. The attorney told him that his two sisters did not want to sue the nursing home. William Gardner did not challenge Halstad's qualifications to be executor; he merely argued that he would be a better choice.
The remaining sibling, Josephine Pritchard, supported Halstad's petition for appointment, declaring that this was consistent with their mother's repeatedly expressed wishes.
In December 2010, the parties appeared in probate court. Halstad's counsel stated that the parties had stipulated that his client would be appointed executor and that she would investigate the merits of a wrongful death action. Counsel asserted that a two-year statute of limitations period applied, implying that there was ample time to conduct this investigation. William Gardner's express agreement to that stipulation does not appear in the record and he asked the probate court to appoint him co-executor. The probate court found that the dispute about whether to pursue a wrongful death action did not bear on the appointment issue. If, as William Gardner argued, Halstad decided not to "cooperate" with his plan to bring action against the nursing home, he would be free to challenge her decision in probate court at a later time. By January 2011, the will was admitted to probate and Halstad was appointed executor of her mother's will. William Gardner's application to be appointed to this role was rejected.
II. DISCUSSION
First, William Gardner contends that the trial court erred in concluding that a two-year statute of limitations applied for an elder abuse action, rather than a one-year negligence limitations period for the proposed wrongful death action. As the decedent died in February 2010, a one-year limitations period for filing the action would have run shortly after the December 2010 probate hearing. If a two-year statute of limitations period applied, then the parties would have had another year to investigate the wisdom of a wrongful death action.
For her part, Halstad urges us to disregard her brother's request to address this issue. We agree that the issue before us on appeal is whether Halstad was properly appointed to be executor of her mother's will. As the person named in her mother's will as executor, Halstad had a right to be appointed to that role unless she was statutorily disqualified from holding that position. (See Prob. Code, § 8420; Estate of Daigh (1963) 59 Cal.2d 367, 368; In re Bauquier (1891) 88 Cal. 302, 308-309; Estate of Buchman (1954) 123 Cal.App.2d 546, 554.) A nominee is statutorily ineligible for appointment on grounds of lack of majority, conservatorship status, wasteful or fraudulent conduct, lack of capacity, neglect, or other cause necessary to protect the estate. (Prob. Code, §§ 8402, subd. (a), 8502.)
William Gardner reasons that Halstad was not qualified to be appointed executor because her reluctance to bring a wrongful death action amounted to a conflict of interest. A reluctance to take action on behalf of the estate if appropriate would violate her duty as executor and would require her removal, he asserts. Thus, the trial court erred in appointing Halstad as the executor of his mother's estate.
Construed in its best light, this claim of error is one asserting that Halstad's reluctance to bring legal action constitutes a failure to protect the estate or its beneficiaries. (See Prob. Code, §§ 8402, subd. (a)(3), 8502, subd. (d); Estate of Daigh, supra, 59 Cal.2d at p. 369.) However, it ignores Halstad's agreement to investigate the merits of a wrongful death action. Although William Gardner does not appear to find this assertion credible, the probate court did. The credibility issue having been resolved against him, we deem it to have been offered in good faith.
A conflict of interest would exist if Halstad acted in her own interest rather than the interest of the estate. (See Baker Manock & Jensen v. Superior Court (2009) 175 Cal.App.4th 1414, 1423.) The record contains no evidence of any action placing her own interests over those of the estate. As William Gardner has not demonstrated that Halstad is unqualified to be appointed executor of the mother's estate, we reject his challenge to the probate court's order.
In light of this conclusion, we need not determine whether William Gardner stipulated to Halstad's appointment. We also decline to address his claim that the probate court failed to explore other factual issues, both because he did not raise them in that court, and because he did not raise them in his opening brief. (See, e.g., Horn v. Atchison T. & S. F. Ry. Co. (1964) 61 Cal.2d 602, 610; Smith v. Board of Medical Quality Assurance (1988) 202 Cal.App.3d 316, 329, fn. 5.)
The order is affirmed. Reardon, J. We concur: Ruvolo, P. J. Rivera, J.