Opinion
G057076
06-29-2020
Estate of STEVEN MOSHIER, Deceased. CYNTHIA LAW, Petitioner and Respondent, v. KIM S. FLETCHER, et al., Contestants and Appellants.
Bunt & Shaver and David N. Shaver for Contestants and Appellants. Reich Radcliffe & Hoover, Adam T. Hoover; Gokal Law Group and Abbas K. Gokal for Petitioner and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2016-00889284) OPINION Appeal from an order of the Superior Court of Orange County, Aaron Heisler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Bunt & Shaver and David N. Shaver for Contestants and Appellants. Reich Radcliffe & Hoover, Adam T. Hoover; Gokal Law Group and Abbas K. Gokal for Petitioner and Respondent.
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This appeal arises from a will contest related to the will of Steven Moshier (Decedent); more specifically, it involves a dispute over the disposition of Decedent's house. Decedent inherited the house from his adoptive father and passed it on through his will to his wife, respondent Cynthia Law. Decedent's adoptive brother and three adult nieces challenged the will, asserting it was always "understood" the house would "stay in the family." The trial court denied their will contest. It also awarded Cynthia approximately $27,000 in cost of proof sanctions under Code of Civil Procedure section 2033.420 (§ 2033.420) based on the appellants' failure to admit a request for admission (RFA) concerning Decedent's intent to leave his entire estate to Cynthia.
Because multiple parties share the same surname, we refer to all individuals (except Decedent) by their first name to avoid confusion. We mean no disrespect.
All further statutory references are to this code unless otherwise noted.
Appellants here seek review of the order granting the sanctions motion. They contend the motion should have been heard by the trial judge, not by a temporary judge. They further assert the temporary judge erred in awarding sanctions because they had a reasonable good faith belief they would prevail on the matter at trial, and because they complied with trial expediting procedures. We reject these contentions and affirm the order.
FACTS
1. Decedent's Family and Will
Decedent's adoptive father, Harry Moshier (Harry Sr.), had two children with his first wife: David Moshier and Harry W. Moshier (Harry Jr.). Harry Sr. divorced his first wife and later remarried. He and his second wife adopted and raised Decedent.
When Harry Sr. died in 1987, he left his house in Garden Grove (the Residence) to Decedent, "[p]rovided that should [Decedent] sell said residence within five years, then the proceeds from any such sale shall be divided equally between my three sons" (i.e., between Decedent, David, and Harry Jr.). Decedent never sold the residence.
Years later, Decedent met his future wife Cynthia at Rio Hondo College, where he was her music instructor. They moved in together in 2006 and were married in 2007. Cynthia was Decedent's third wife and was about 25 years his junior. Cynthia never met or spoke with Decedent's adoptive brothers or nieces. According to Cynthia, Decedent only mentioned his adoptive brothers once and never spoke with them.
A few months after they were married, Decedent designated Cynthia as the sole beneficiary on his life insurance policy and retirement account. He also added Cynthia as a grantor on the deed of trust on the Residence. However, he never added her to the title on the Residence. According to Cynthia, she never asked to be added because Decedent told her he would leave her the house in his will.
The trial court dismissed this fact as inconsequential: "[Appellants] made much of the fact that decedent never put [Cynthia] on the title to the real property. As decedent had been married and divorced twice, the Court sees that failure as merely prudent."
In 2016, Decedent downloaded a form will from LawDepot.com and created a will. The will named Cynthia as the executor of his estate and left her his entire estate if she survived him for 30 days. Decedent, who typically included his middle initial in his signature, omitted his middle initial from his signature on the will. Cynthia was the only witness to the will, which was not signed by two witnesses as required by Probate Code section 6110, subdivision (c).
Decedent died unexpectedly from a heart attack two months later. He had no children, and both of his adoptive parents predeceased him. He and Cynthia were still living in the Residence when he died.
2. The Will Contest
Cynthia filed a petition for letters of administration, followed by an amended petition to probate the will. Decedent's adoptive brother, Harry Jr., and his adoptive brother David's three adult daughters, Kim S. Fletcher, Barbara J. Moshier, and Rita M. O'Connor (collectively, Appellants), filed a will contest, seeking an intestate share of Decedent's estate. They asserted the will did not comply with Probate Code sections 6110 and 6111 because the only witness to its execution was Decedent's wife (Cynthia), the will was the product of undue influence, and Decedent lacked capacity to execute the will.
David predeceased Decedent in 2001.
Cynthia propounded RFAs and Form Interrogatories on Appellants. RFA No. 5 asked Appellants to each "[a]dmit that Decedent intended to leave his entire estate to" Cynthia. Appellants denied RFA No. 5 and responded to Form Interrogatory No. 17.1, which sought information supporting any unqualified denials, as follows: "Pending further investigation and discovery, the main asset of the Decedent's estate was a piece of real property which he inherited from his father Harry William Moshier, Sr. who died in 1987. The will of Harry William Moshier, Sr. provided that the real property went to the Decedent and that if the property was sold within 5 years, the proceeds were to be split by the Decedent and his brothers, David Moshier and Harry Moshier. Respondent contends that it was understood by the Decedent and his brothers David Moshier and Harry Moshier, that the real property was to stay in the family and that the Decedent would not have left the property to someone other than his brothers."
Appellants later amended their will contest to delete the claims based on undue influence and capacity, but they added claims that the will was not signed by Decedent and that the original will was not lodged with the court.
Before trial, in accordance with Orange County Superior Court Rule 317, the parties stipulated to 23 facts, including that Decedent was of sound mind until his death. Their stipulated facts did not address, however, whether Decedent intended to leave his entire estate, including the Residence, to Cynthia.
They also identified three issues in dispute: (1) "Should the document offered as [Decedent's] will be treated as validly executed under California Probate Code §6100 or §6112?," (2) "Did [Decedent] sign the will document?," and (3) "Where a father, after divorcing his natural children's mother, then remarries and adopts a child, do the natural children have an intestacy right in the adopted child's estate?"
3. Trial on the Will Contest
The Honorable Kim Hubbard presided over the court trial on the will contest. The court heard testimony from Cynthia, Cynthia's handwriting expert, and Cynthia's attorney, among others. It also heard testimony from Robert Ahart, Decedent's lifelong friend, who testified that Decedent told him in 2015 that he planned to leave everything to Cynthia. Additionally, Decedent's biological half-sister testified via videotaped deposition that in 2007, Decedent told her he was leaving his estate to Cynthia, whom he loved very much.
Appellants did not call any expert witnesses. In fact, the only Appellant present at trial was Barbara. Barbara testified that her grandfather, Harry Sr., had told her the Residence would stay in the family and go to his three sons, but Decedent would be allowed to live there rent free. According to Barbara, it was her family's "understanding" that Harry Sr. "was giving the house to the three boys, with the condition that [Decedent] could live there . . . , and then after five years the house would be sold and the proceeds would be split" among the three boys. Barbara admitted she had not read Harry Sr.'s will "until very recently" and had nothing in writing to support her belief concerning the disposition of the Residence. She also admitted she never discussed the Residence or any estate documents with Decedent, she had not seen Decedent in person since the late 1980s or early 1990s, and she had never met Cynthia.
After taking the matter under submission, the trial court denied Appellants' will contest. The court explained the trial "involved three issues, to wit, 1) was the purported last will and testament of the decedent executed in accordance with the law; 2) if not, did extrinsic evidence show, by clear and convincing evidence, that the provisions of the purported will were, in fact, the wishes of the testator; and, 3) if the purported will was not properly executed and there was no clear and convincing evidence that the terms of the purported will were the testator's intent, did the intestate heirs of the decedent include relatives that became relatives due to the adoption of the decedent." The court added, "Frankly, this matter turns upon the second issue" because "[c]learly the will was not executed properly."
The trial court then found there was "clear and convincing eviden[ce] of the decedent's intent" to leave his entire estate to Cynthia. It reasoned, "She was specifically named in the will. Decedent told his best friend and his half-sister that he was leaving his entire estate to his wife. She was made the beneficiary on his life insurance. She was a co-grantor on the deed of trust for the property. The [wife's] handwriting expert testified that there is a high probability that decedent executed the will. [¶] Conversely, the one [Appellant] who was present never talked to decedent about his property or his estate documents and had not seen him in over 25 years."
The trial court therefore denied Appellants' will contest, admitted Decedent's will to probate, and appointed Cynthia as executor of Decedent's estate.
4. Cynthia's Motion for Cost of Proof Sanctions
Cynthia moved for cost of proof sanctions, seeking to recover the attorney fees and costs she incurred in proving the truth of the matter in RFA No. 5—i.e., that Decedent intended to leave his entire estate to her. Appellants opposed the motion, asserting they had a reasonable good faith belief they would prevail on the matter.
The motion was heard by Temporary Judge Aaron Heisler. Appellants argue this constituted fatal error. We discuss the events that led Judge Heisler to hear the motion in greater detail below.
Judge Heisler granted the motion, awarding Cynthia $23,675 in attorney fees and $3,707 in costs. Judge Heisler reasoned, "[Cynthia] undisputedly proved at trial that the Decedent intended to leave his entire estate to her. The court made express findings to that effect." The court also rejected Appellants' contention that they had reasonable grounds to believe they would prevail on the issue at trial, noting their opposition was "[m]issing . . . any evidence regarding what [Appellants] actually knew at the time of their denials of Request No. 5."
Appellants appealed the trial court's order granting the sanctions motion.
DISCUSSION
1. The Trial Judge Was Not Required to Hear the Sanctions Motion
Appellants contend the trial judge, the Honorable Kim Hubbard, was required to hear the motion for cost of proof sanctions. We disagree.
Appellants stipulated to having Judge Heisler hear the motion, and they failed to withdraw that stipulation in the manner prescribed by the California Rules of Court. California Rules of Court, rule 2.816 (CRC 2.816) governs stipulations for matters to be heard by temporary judges. It requires the trial court to give notice before the commencement of the proceeding—either by a conspicuous sign posted inside or just outside the courtroom, accompanied by oral notification, or by written notice—that a temporary judge will be hearing the matters for that calendar, the judge is a qualified member of the bar, and the parties have a right to have the matter heard before a judge, commissioner, or referee of the court. (CRC 2.816(b) & (c).)
Once the trial court provides the requisite notice, a party will be "deemed to have stipulated to the attorney serving as a temporary judge if the party fails to object to the matter being heard by the temporary judge before the temporary judge begins the proceeding." (CRC 2.816(d)(1), italics added.) To withdraw a stipulation for the appointment of a temporary judge, a party must file an application or motion to withdraw the stipulation, which "must be supported by a declaration of facts establishing good cause for permitting the party to withdraw the stipulation." (CRC 2.816(e).)
The record here confirms Appellants implicitly stipulated to having the sanctions motion heard by the temporary judge. The motion came on for hearing twice before Judge Heisler—first on August 1, 2018, when he provided his tentative ruling to counsel and granted Cynthia's request for a continuance to submit additional briefing and evidence, and then again on September 12, 2018, when the motion was called for oral argument. The minute orders from both hearings reflect all parties present were "advised by virtue of a posted notice and verbal notification of the right to have the matter heard before a judge or commissioner."
It was thus incumbent on Appellants to "object to the matter being heard by the temporary judge before the temporary judge beg[an] the proceeding" if they did not want Judge Heisler to hear the sanctions motion. (CRC 2.816(d)(1), italics added.) According to the reporter's transcript from the August 1 hearing, counsel initially refused to stipulate to the temporary judge. Judge Heisler then advised the parties that given the lack of stipulation, "no appearances are necessary," that a superior court judge was available to hear the motion, and the clerk would simply "send [them] down the hall." After taking a recess and apparently conferring with the clerk, however, the parties evidently changed their minds and without further discussion or objection appeared before Judge Heisler, thereby implicitly agreeing to proceed before him.
After entering his appearance, Appellants' counsel explained he believed the trial judge, Judge Hubbard, had "the most familiarity with the facts" and "would be in the best position" to rule on the motion. Judge Heisler then agreed to speak with Judge Hubbard to invite her to hear the motion. At the September 12 hearing, however, Judge Heisler informed the parties Judge Hubbard had declined the invitation to hear the motion. Neither side objected or argued that Judge Hubbard was required to hear this motion. Instead, the parties submitted on the papers.
On this record, we conclude Appellants implicitly stipulated to having the motion resolved by Judge Heisler. Further, they failed to file the requisite written application or motion to withdraw that stipulation based on good cause. (See CRC 2.816(e).)
Appellants now insist Judge Hubbard was required by law to hear the motion because she had extensive knowledge about the trial. They note in other contexts we have found the trial judge should hear a motion seeking sanctions based on conduct that occurred at trial. (See, e.g., Orange County Dept. of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 805-806 [child support obligor's motion for sanctions against county department for prosecuting unmeritorious action for contempt should be heard by same commissioner who heard the contempt hearing]; Abbott v. Mandiola (1999) 70 Cal.App.4th 676, 678 ["absent inability, the judge who declares a mistrial must also hear any request for sanctions against anyone causing that mistrial"].)
We decline to extend that same rule here, however, where the issue presented by the motion was not whether Appellants committed sanctionable conduct during trial, but instead whether they committed sanctionable conduct during pretrial discovery. As Cynthia aptly notes, the trial court did not award sanctions against Appellants for losing at trial; it awarded sanctions because, months before the trial, they denied an RFA without any reasonable ground to believe they could prevail on the matter at trial. We see no compelling reason why a temporary judge is ill-suited to rule on whether a party's refusal to admit an RFA warrants cost of proof sanctions under section 2033.420. In the absence of any authority on point—and Appellants concede there is none—we decline to create such a rule.
Finally, even if the law required Judge Hubbard to hear Cynthia's motion, Appellants invited the error by implicitly stipulating to having the temporary judge rule on the motion and by not filing the requisite motion to set aside the stipulation. (See Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000 ["'when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error'"].)
2. The Trial Court Did Not Abuse Its Discretion in Awarding Cost of Proof Sanctions
Appellants next contend the trial court erred in awarding cost of proof sanctions. Again, we disagree.
A. The Statutory Scheme and Standard of Review
A party to a civil action may propound a written request for the admission of "the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact." (§ 2033.010.) In response, the responding party must "[a]dmit so much of the matter involved in the request as is true," "[d]eny so much of the matter involved in the request as is untrue," and "[s]pecify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge." (§ 2033.220, subd. (b)(1)-(3).) "Since RFAs are not limited to matters within the personal knowledge of the responding party, that party has a duty to make a reasonable investigation of the facts." (Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 691.)
If the requesting party proves the truth of an RFA previously denied by the responding party, the requesting party may move for an order requiring the responding party to pay the reasonable expenses incurred in making that proof, including reasonable attorney fees. (§ 2033.420, subd. (a).) The trial court "shall" award cost of proof sanctions "unless it finds any of the following: [¶] (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. [¶] (2) The admission sought was of no substantial importance. [¶] (3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter. [¶] (4) There was other good reason for the failure to admit." (Id., subd. (b)(1)-(4).) The burden of justifying denial of RFAs and proving the applicability of any exception to subsection (b) falls on the responding party. (See Samsky v. State Farm Mutual Automobile Ins. Co. (2019) 37 Cal.App.5th 517, 523-524 (Samsky).)
We review a trial court's order granting cost of proof sanctions for abuse of discretion. (Samsky, supra, 37 Cal.App.5th at p. 521.) An abuse of discretion occurs when the court's decision is "'so irrational or arbitrary that no reasonable person could agree with it.'" (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.)
B. Cynthia Proved the Truth of RFA No. 5 at Trial
We must first determine whether the trial court abused its discretion in finding Cynthia conclusively proved the matter in RFA No. 5—Decedent's intent to leave his entire estate to Cynthia—at trial. (§ 2033.420, subd. (a).) We find no abuse of discretion in this finding.
Appellants maintain "the issues presented in RFA No. 5 were not tried [or] established in [Cynthia's] favor." The record belies this argument. Decedent's testamentary intent was a central focus in the case. Indeed, in her order denying the will contest, Judge Hubbard noted the entire case "turn[ed]" on whether "the provisions of the purported will were, in fact, the wishes of the testator" and found there was "clear and convincing eviden[ce] of the decedent's intent" to leave his entire estate to Cynthia. Moreover, in their supplemental opposition to Cynthia's sanctions motion, Appellants asserted the issue of Decedent's intent "was the crux of their case." They cannot now claim Decedent's intent was not a critical issue proven at trial.
C. Appellants Had No Reasonable Ground to Believe They Would Prevail on the Issue of Decedent's Intent
We next must determine whether the trial court abused its discretion in finding Appellants lacked reasonable grounds to believe they would prevail on the matter in RFA No. 5. (§ 2033.420, subd. (b)(3).) Again, we find no abuse of discretion.
"When a party denies an RFA, '[t]he question is not whether a reasonable litigant would have denied the RFAs. Nor is the question simply whether the litigant had some minimum quantum of evidence to support its denial (i.e., "probable cause"). The relevant question is whether the litigant had a reasonable, good faith belief he or she would prevail on the issue at trial.'" (Samsky, supra, 37 Cal.App.5th at p. 526.) "Whether a party has a reasonable ground to believe he or she will prevail necessarily requires consideration of all the evidence, both for and against the party's position, known or reasonably available to the party at the time the RFA responses are served." (Orange County Water Dist. v. The Arnold Engineering Co. (2018) 31 Cal.App.5th 96, 118 (Arnold Engineering).)
"'Consideration of this question requires not only an assessment of the substantiality of the evidence for and against the issue known or available to the party, but also the credibility of that evidence, the likelihood that it would be admissible at trial and persuasive to the trier of fact, the relationship of the issue to other issues anticipated to be part of trial (including the issue's importance), the party's efforts to investigate the issue and obtain further evidence, and the overall state of discovery at the time of the denials and thereafter.'" (Samsky, supra, 37 Cal.App.5th at p. 526.)
"A party's reasonable belief must be grounded in the evidence; it cannot be based merely on 'hope or a roll of the dice.' [Citation.] It is also not enough for a party making the denial to '"hotly contest"' the issue; instead, 'there must be some reasonable basis for contesting the issue in question before sanctions can be avoided.'" (Arnold Engineering, supra, 31 Cal.App.5th at p. 116.)
Applying these authorities here, we conclude Appellants had no reasonable basis for denying that Decedent intended to leave his entire estate to Cynthia. Kim, Rita, and Harry Jr. were not present at trial, and the record contains no evidence about what they knew, if anything, about Decedent's intent at the time they denied RFA No. 5. Barbara testified Harry Sr. told her many years ago the Residence would stay in the family and go to his three sons. But whatever Harry Sr. might have said to Appellants back in the 1980s is not particularly probative in determining what Decedent intended for the Residence when he created his will in 2016. Barbara admitted she had not read Harry Sr.'s will "until very recently." She had nothing in writing to support her belief concerning the disposition of the Residence; she never discussed the Residence with Decedent; and she never discussed estate documents with Decedent. In fact, Barbara had not seen Decedent in person since the late 1980s or early 1990s. Considering there is no evidence Appellants ever spoke with Decedent after he married Cynthia about his intentions for his estate or the future of the Residence, we fail to see how they could have reasonably claimed to know what Decedent's testamentary intent was.
Although Harry Sr.'s will "[p]rovided that should [Decedent] sell said residence within five years, then the proceeds from any such sale shall be divided equally between my three sons" (i.e., between Decedent, David, and Harry Jr.), Decedent never sold the residence. As the trial court noted, if Harry Sr. had wanted Decedent to only live there during his lifetime, he could have given him a life estate. He did not. --------
Appellants make much of the fact that Decedent signed the will without including his customary middle initial; they insist this supports their belief that the signature on the will was not Decedent's and Decedent did not intend to leave his entire estate to Cynthia. This argument conflates two separate issues: the validity of the signature, and Decedent's intent for his estate. Even if Appellants had a reasonable basis for believing the signature on the will was not Decedent's, they had no rational basis for believing Decedent did not intend to leave his estate to Cynthia.
Again, "[a] party's reasonable belief must be grounded in the evidence; it cannot be based merely on 'hope or a roll of the dice.'" (Arnold Engineering, supra, 31 Cal.App.5th at p. 116.) Appellants cite no evidence known to them during discovery that reasonably supports their denial of RFA No. 5. They thus failed to carry their burden of establishing they had a reasonable ground to believe they would prevail on the matter.
D. Appellants' Compliance with Trial Expediting Procedures Did Not Insulate Them from Sanctions
Appellants alternatively contend sanctions were unwarranted because they complied with trial expediting procedures, like stipulating to certain facts and the admissibility of trial exhibits. Once again, we cannot agree. Compliance with local rules on trial expediting procedures is not one of the statutory exceptions listed in section 2033.420, subdivision (b). Moreover, Appellants did not stipulate that Decedent intended to leave his entire estate to Cynthia. If they had, Cynthia would not have needed to incur attorney fees and costs in proving the matter at issue in RFA No. 5. Appellants' refusal to stipulate on the issue of intent is precisely why cost of proof sanctions were appropriate. Their stipulation as to other facts is irrelevant and does not insulate them from cost of proof sanctions for a wrongful RFA denial.
For the above reasons, we conclude the trial court did not abuse its discretion in awarding cost of proof sanctions.
DISPOSITION
The order is affirmed. Cynthia shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
GOETHALS, J. WE CONCUR: IKOLA, ACTING P. J. THOMPSON, J.