Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Super. Ct. No. 1152565, Santa Barbara County, Rodney S. Melville, Judge.
Law Offices of Peter J. Anderson, Peter J. Anderson; Mary M. Lambert for Objector and Appellant.
Soma F. Baldwin for Petitioner and Respondent.
PERREN, J.
Kimberly Becker appeals from a probate court order distributing the assets of the estate of her grandfather, John Henry Reese, to his surviving spouse, respondent Norma Reese Eschen. Becker also purports to appeal from a prior order of the probate court appointing Eschen as executor. We dismiss the appeal because appellant is not a "party aggrieved" under Code of Civil Procedure section 902 and has no standing to appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Reese, a prolific author, died in 1981. He executed a will on May 4, 1979, devising his entire estate to Eschen. The will contains the following language applicable here: "I specifically disinherit my former wife, Margaret Metcalf, and my children, issue of my marriage to Margaret Metcalf, namely: [¶] Marylou Janet Walton [¶] Catherine Stephanie Colvin [¶] Andrew Joel Reese." Becker is the daughter of Marylou Janet Walton.
On July 1, 2004, 23 years after her grandfather's death, Becker filed a petition to administer Reese's estate. She apparently had no knowledge of the existence or content of Reese's will. The petition alleged that Reese left no surviving spouse.
In response, Eschen filed a petition to probate Reese's will and codicil and to be appointed executor. Eschen submitted a certified copy of a marriage certificate showing she was wed to Reese; the original of Reese's will dated May 4, 1979; and a codicil dated September 29, 1980. She opposed Becker's petition for administration. Becker opposed Eschen's petition to be appointed executor, reiterating her request to be appointed administrator of the estate. An order was entered, admitting Reese's will and codicil to probate and appointing Eschen executor.
Eschen submitted an inventory and appraisal setting forth the property owned by Reese at the time of his death. The appraised value of the estate was $500. The property consisted entirely of writings authored by Reese. Becker objected to the inventory as incomplete. She asserted that the appraisal did not contain works written by Reese during the years 1934 to 1952.
Eschen submitted a revised inventory and appraisal with a petition for final distribution. The amended appraisal showed the estate's value as $2,135. It included the works written between 1934 and 1952, with the proviso that the initial copyright and the copyright renewal, if any, were bequeathed. Becker objected to the amended inventory and appraisal and the proposed final judgment of distribution.
On or about May 4, 2006, the court entered judgment of final distribution, distributing all property owned by Reese at the time of his death to Eschen. The court's order of distribution recognizes that "the renewal right [for works authored by decedent from 1953 to 1977] cannot be devised and pass by operation of federal law to a class composed of decedent's spouse . . . and decedent['s] children . . . ."
On appeal, Becker alleges the probate court erred in appointing Eschen as executor and in distributing Reese's estate to Eschen. Eschen asserts the order appointing her executor became final prior to the entry of the judgment of distribution and cannot be collaterally attacked by appealing the judgment of distribution. Eschen also asserts that the judgment of distribution properly distributed Reese's estate to her as the sole beneficiary under Reese's will.
We requested and received supplemental briefing from the parties on the issue of whether Becker has standing to appeal as a "party aggrieved" by the judgment. (Code Civ. Proc., § 902.)
DISCUSSION
Standard of Review
The issue of whether a party has standing to appeal is a question of law. (IBM Personal Pension Plan v. City and County of San Francisco (2005) 131 Cal. App.4th 1291, 1299.) "Standing to appeal is 'jurisdictional and therefore cannot be waived.'" (Marsh v. Mountain Zephyr (1996) 43 Cal. App.4th 289, 295.) Thus, if a party has no standing to appeal, this court has no jurisdiction to consider the appeal.
To have standing to appeal, a person must be "aggrieved" in the sense that his or her rights or interests are injuriously affected. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736-737.) The appealing party's interest must be immediate, pecuniary and substantial, and not a nominal or remote consequence of the judgment or order. (Id. at p. 736.)
The controlling principal of law as to standing to appeal an order of the probate court is well stated in Estate of Thor (1935) 11 Cal.App.2d 37, 37-38: "It is well settled that, in view of the admitted fact that since the surviving but disinherited husband occupied the position of a stranger to the estate of his deceased wife, he had no standing in court in the matter either of the settlement of the account of the executor of the will … or of the manner in which distribution of her estate should be ordered. (Estate of Rowland [1888] 74 Cal. 523, 526; Estate of Burdick [1896] 112 Cal. 387, 396; Estate of Wenks [1915] 171 Cal. 607, 609; Estate of King [1926] 199 Cal. 113, 117; Bauer v. Bauer [1927] 201 Cal. 267; Shaw v. Palmer [1924] 65 Cal.App. 441, 446; Johnson v. Superior Court [1929] 102 Cal.App. 178; Texas Co. v. Bank of America [1935] 5 Cal.2d 35.) [¶] It follows that, having no right to be heard in the matter before the probate court, the surviving husband likewise had no right of appeal from any order that might be made in the premises." (See also Estate of King (1953) 121 Cal.App.2d 765, 770 ["[Appellant] claims that she is a person interested in decedent's estate, for 'she states that she is an heir of the estate.' This assertion is a mere allegation of a conclusion of law and is contrary to the facts which appear in the record. Decedent's second codicil [fn. omitted] expressly provided that decedent was not making any provision for . . . [appellant] . . . . Therefore she is obviously not a devisee under decedent's will and not interested as such in his estate. She is not entitled to maintain this appeal individually"]; and see Rousseau v. Raoul-Duval (1962) 203 Cal.App.2d 589, 590-591 [same].)
Because Becker was disinherited, she also would not be an "interested person" under Probate Code section 48.
In a declaration filed with the probate court, Becker states: "Kimberly Becker has made no claim to be a beneficiary under her grandfather's will. Rather, she claims to be one of several owners of copyrights. These copyrights cannot be administered in this estate because they have vested in the class of persons consisting of the Decedent's widow and children. Kimberly Becker is an assignee of her mother's interests in those copyrights and as such should be found to have standing to object to their inclusion in an estate in which they cannot be administered."
Becker does not derive standing as "an assignee of her mother's interests in those copyrights" because she is the daughter of Marylou Janet Walton, one of the children that Reese disinherited.
In her supplemental brief, Becker asserts that she has standing to appeal because she filed this lawsuit, the probate court is a court of general jurisdiction and may apply general equitable principles and give equitable remedies, and the property distributed to Eschen as her sole property includes "copyrights that are as a matter of federal law owned jointly by [Becker] and others or in the public domain."
As jurisdiction cannot be conferred by waiver, estoppel or consent (People v. Tindall (2000) 24 Cal.4th 767, 776, fn. 6), simply filing a lawsuit is insufficient to confer jurisdiction where none otherwise exists. The case cited by Becker to support her argument that she has standing because the probate court has general equity jurisdiction does not do so. In Estate of Jimenez (1997) 56 Cal. App.4th 733, 741, fn. 5, the court said: "We recognize that in matters over which the probate court otherwise has jurisdiction, it may apply general equitable principles and give equitable remedies."
Becker's pecuniary interest was not affected by the probate court proceedings as she was not an heir. On appeal, she would not be affected by this court's affirmance or reversal of that order. Any interest or claim she may have arising under federal copyright law is properly brought in federal court. (See, e.g., Melchior v. New Line Productions, Inc. (2003) 106 Cal. App.4th 779, 791.)
It is unnecessary to discuss other questions presented in the appeal. The appeal is dismissed. Respondent shall recover costs on appeal.
We concur: YEGAN, Acting P.J., COFFEE, J.