Opinion
A149442
06-19-2018
JONATHAN PORTERO-BROWN, Plaintiff and Appellant, v. PATRICIA D. SMITH JAVAHERI, as Trustee, etc., Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RP15786933)
The trial court dismissed plaintiff Jonathan Portero-Brown's petition challenging the validity of a trust established to receive and distribute the property of recently deceased J.D. Smith, Jr. (Prob. Code, § 17200.) The court found that plaintiff is Smith's biological son but has no standing to assert an interest in Smith's property because plaintiff was born out of wedlock and Smith had not "openly held out the child as his own" as necessary to establish legal paternity. (§ 6453, subd. (b)(2).) The court found that Smith had "openly and publicly acknowledged" plaintiff to be his son within plaintiff's "family and social circles" but held this to be insufficient because Smith "never so acknowledged" plaintiff in Smith's "own family and social circles."
All further statutory references are to the Probate Code.
We conclude that holding a child out as one's own within the meaning of section 6453, subdivision (b)(2) does not require an announcement of paternity to the world and is not necessarily precluded by withholding that information from family members unaware of the father's extra-marital relationship. Under the circumstances presented here, decedent "openly held out the child as his own" sufficient to establish paternity. We shall therefore reverse the order finding plaintiff without standing to contest the trust.
Statement of facts
The evidentiary hearing was not transcribed. The statement of facts is drawn from a settled statement and appellant's appendix. (Cal. Rules of Court, rules 8.124, 8.137.)
Smith was born in 1931. He and his wife Mary had three children born before 1963. Smith was a professional football player for 10 years, spending most of his career as a running back with the San Francisco 49ers. He retired as a running back in 1966. Smith went to work as a security executive for Sears and also worked seasonally as a scout for the 49ers through the early 1970s. Smith and his wife divorced in 1973 but he retained a close relationship with his children. Smith retired from Sears in 1991. He executed a will and inter vivos trust on September 24, 1999, at age 68. The will names his three marital children as his only children and bequeaths all property to the trust. The trust equally distributes all assets among Smith's three marital children upon his death and names his eldest child, Patricia D. Smith Javaheri, as trustee. Smith died in 2015 at age 83.
The nature of the assets is unclear. The trust references "assets set forth in Schedule 'A' " but the schedule is not contained in the record on appeal. --------
After Smith's death his marital children learned for the first time that he had fathered a child in 1968 during an extra-marital affair. Plaintiff's mother, Suzanne Portero, testified that she had a romantic relationship with Smith from 1966 to 1969. Portero testified that Smith is plaintiff's father and that she listed "J. Smith" as the father on plaintiff's birth certificate.
Portero testified her relationship with Smith was not made public at the time because "it would cause a scandal" as Smith was "a famous professional football player" who was married with three children and the relationship was inter-racial (Smith was African-America and Portero is Caucasian). According to Portero, Smith was "extremely protective of his children; he loved them very much and did not want them to be hurt by news of his extramarital affair."
Portero further testified: "Although [Smith] was concerned that the public and his wife would learn of [the] relationship, [Smith] was very open about their relationship and being [plaintiff's] father to people within [Portero's] social circle. [Portero's] roommate and employer, during the time she was pregnant, as well as [Portero's] mother, all knew about her affair with [Smith], and it was common knowledge among them that [Smith] was the father of [Portero's] child." Portero also testified that Smith never asked her "to lie about or deny that he was [plaintiff's] father."
Portero said Smith visited her and the baby in the hospital and maintained regular contact with them through the child's early years. Visits stopped around 1975, when plaintiff was about seven years old, because Portero's new husband resented her friendship with Smith. Portero kept in touch with Smith over the telephone and visits between Smith and plaintiff resumed during plaintiff's high school years, around 1985.
Smith attended plaintiff's 1993 college graduation ceremony and a party at plaintiff's apartment following the ceremony. According to plaintiff, Portero and several friends of plaintiff in attendance, Smith introduced himself to fellow guests as plaintiff's father. Plaintiff said he last saw Smith in 2011 when he went to Smith's home. Smith "opened the front door, but did not open the screen door. [Plaintiff] told [Smith] that he had a letter for him, and [Smith] told him to leave it in the screen door. The letter was a request to meet [Smith's] three children. [Plaintiff] complied with his instructions and then left. [Smith] never responded to the letter and [plaintiff] never spoke with [Smith] again."
Trial court proceedings
On May 6, 2015, Smith's daughter, acting as executor and trustee, lodged Smith's will with the court. On September 23, 2015, plaintiff filed a petition contesting the validity of Smith's will and trust and later amended his petition to contest the trust alone. (§ 17200.)
Plaintiff alleges he is Smith's biological son with standing to contest the trust because plaintiff "will benefit from a judicial determination that the purported trust is invalid, thereby causing the decedent's assets to be distributed through intestate succession." The trust is alleged to be invalid on several grounds: (1) Smith lacked testamentary capacity because he suffered from concussive traumatic encephalopathy and other cognitive impairments; (2) Smith mistakenly thought plaintiff was not his son or was dead; and (3) the trust was the product of undue influence by Smith's marital children.
The trustee moved for an evidentiary hearing to determine plaintiff's standing before proceeding to a trial on the merits. The trustee asserted that plaintiff could not show he is Smith's son and, therefore, has no standing to contest the validity of the trust. Following an evidentiary hearing on June 13 and 14, 2016, the court found that "[a]ll presented testimony was credible, and clearly established that [plaintiff] was decedent's biological son." But the court concluded that paternity of a child born out of wedlock must be "established by clear and convincing evidence that the father has openly held out the child as his own." (§ 6453, subd. (b)(2).) "While decedent openly and publicly acknowledged [plaintiff] to be his son on several occasions, this occurred only within [plaintiff's] family and social circles. Decedent never so acknowledged [plaintiff] in [decedent's] own family and social circles, such that those most likely charged with administering decedent's estate had no knowledge of [plaintiff] or his relationship to the decedent. The legislative intent behind [Probate Code section] 6453(b)(2), namely promotion of the efficient and expeditious administration of decedent['s] estates, is not advanced in this case, and so [plaintiff] does not have standing to pursue his trust contest."
Discussion
The only issue on appeal is whether plaintiff has standing to contest the J.D. Smith trust. Plaintiff has standing if he is a child of the decedent entitled to a share of his property by the laws of intestacy if the trust is invalidated. For a child born of unmarried parents, paternity may be established after the father's death by "clear and convincing evidence that the father has openly held out the child as his own." (§ 6453, subd. (b)(2).) "The legislative history of section 6453, subdivision (b)(2) indicates that the clear and convincing evidence standard is 'to discourage dubious paternity claims made after a father's death for the sole purpose of inheritance.' " (Estate of Burden (2007) 146 Cal.App.4th 1021, 1027 (Burden).)
Several cases have examined what it means to openly hold out a child as one's own. Burden, supra, 146 Cal.App.4th at pages 1028-1029 looked at related statutory provisions and concluded that " 'openly holds out' is synonymous with 'acknowledge,' " which is commonly defined as " ' "[T]o show by word or act that one has knowledge of and agrees to (a fact or truth) . . . [or] concede to be real or true . . . [or] admit." ' " The court indicated that a "private acknowledgement" would be insufficient but found paternity sufficiently established by evidence that the decedent had admitted paternity "on a number of occasions to a number of people." (Id. at p. 1030.) When the decedent in that case was told of his girlfriend's pregnancy "he did not deny fatherhood and proposed marriage;" when the child grew to adulthood and contacted decedent, decedent apologized for being "an inactive father;" decedent told the child he saw a family resemblance between them; decedent's mother and siblings established a relationship with the child and testified that decedent "did not deny fatherhood"; the decedent wrote to his sister saying he had been "a party to conception" but wanted no relationship with the child. (Id. at pp. 1024-1025.) The court concluded the "paternity claim is not 'dubious.' Although [decedent] only grudgingly admitted paternity, he did so on a number of occasions to a number of people, both orally and in writing." (Id. at p. 1030.)
Estate of Britel (2015) 236 Cal.App.4th 127, 132 (Britel) held "section 6453(b)(2)'s phrase, 'openly held out,' requires the alleged father to have made an unconcealed affirmative representation of his paternity in open view." "But although the representation must be a public one, in the sense of being made in open view, the statute does not require an announcement to the world, an official action, or an affectionate fatherly intent." (Id. at p. 139.) The court extracted "potentially useful guidelines" from a case interpreting public acknowledgement in the adoption context: " 'While it is not required in order to constitute public acknowledgment that the father declare his paternity under all circumstances, it would be opposed to the idea of public acknowledgment if he deliberately refrained from declaring his paternity when the occasion would naturally demand it; or misrepresented the fact, or remained silent when he would reasonably be expected to announce he was the father of the child, as, for instance, in the case of immediate relatives.' [Citation.] Nor does a person publicly acknowledge a child by revealing the child's existence to persons who are not ' " 'likely to make public what [the decedent] had said to them on such a subject, but rather to accept it as a matter of confidence, to be kept secret." ' " (Id. at p. 139, quoting Estate of Baird (1924) 193 Cal. 225, 275.)
The Britel court found substantial evidence supported the trial court's finding that decedent had not openly held out claimant as his child. (Britel, supra, 236 Cal.App.4th at p. 132.) Decedent responded to his girlfriend's report of her pregnancy with an email "saying he was 'devastated,' he would never be able to share the news with his parents, and that having a child out of wedlock was contrary to his Muslim religion and his culture and would bring him 'a total shame [he would] have to bear for the rest of [his] life.' " (Ibid.) After meeting with his girlfriend, decedent told her "not to contact him again and that he did not want her or the baby to be in touch with him or his family." (Id. at p. 133.) Decedent spoke with no one else about the pregnancy except his best friend. Decedent confided that his girlfriend "said she was pregnant with his baby, and that his having a child out of wedlock would bring shame to his family" and might cause him to be disinherited. (Ibid.) Decedent initially told his friend "he was not sure whether [his girlfriend] was really pregnant, but that he had told [her] that if she was indeed pregnant, he would like her to have an abortion." (Ibid.) Decedent later lied to his friend, saying there had been an abortion and that the two never discussed the matter again. (Ibid.) Decedent rebuffed his girlfriend's efforts to establish a relationship when the child was five years old, saying he "wanted nothing to do with" her or the child. (Ibid.) Decedent died when the child was 10 years old without ever seeing her. (Id. at pp. 133-134.) Decedent "was close with his family members, but never told them he had a child." (Id. at p. 134.)
The Britel court found the evidence showed only a private concession of paternity to decedent's girlfriend and best friend and that such private admissions are insufficient to satisfy the "openly held out" requirement. (Britel, supra, 236 Cal.App.4th at p. 140.) The court noted that the adverb, "openly," has "several dictionary definitions that might apply here: (1) 'freely and without concealment' (Webster's 3d New Internat. Dict. (2002) p. 1580, col. 2); (2) 'without concealment, deception, or prevarication, esp. where these might be expected' (New Oxford American Dict. (3d. ed. 2010) p. 1228, col. 3); and (3) 'frankly or honestly' (ibid.). Another dictionary, while not containing a separate definition for the adverb 'openly,' defines the adjective 'open' (in this context) as 'completely free from concealment' and 'exposed to general view or knowledge.' (Merriam-Webster's Collegiate Dict. (10th ed. 2001) p. 811, col. 2.)" (Britel, supra, at pp. 137-138.)
The Britel decedent never "openly" declared his paternity to anyone. He grudgingly conceded paternity in private conversations with his girlfriend while cautioning her that "he did not want her or the baby to be in touch with him or his family." (Britel, supra, 236 Cal.App.4th at p. 133.) He confided in his best friend about the pregnancy then concealed the birth by saying his girlfriend had an abortion. (Ibid.) Decedent never "made an unconcealed affirmative representation of his paternity in open view." (Id. at p. 144.)
The factual situation in the present case falls between the two extremes of Burden, supra, 146 Cal.App.4th at pages 1029-1030 and Britel, supra, 236 Cal.App.4th at pages 144-145. Decedent Smith did not admit paternity to his close relatives, as in Burden. Nor did Smith admit paternity only to the mother's child and his best friend, as in Britel. Smith admitted paternity in one social circle and concealed it from another. Although Smith concealed his paternity from his wife, marital children, parents and friends, he "openly and publicly acknowledged" plaintiff to be his son within plaintiff's "family and social circles," as the trial court found. Smith acknowledged his paternity to a wide array of plaintiff's family and friends and never asked plaintiff's mother "to deny" his paternity. At plaintiff's college graduation ceremony and party, Smith approached plaintiff's friends and freely introduced himself as plaintiff's father.
The trial court interpreted the statutory condition that a father openly hold out the child as his own to require an acknowledgement of paternity within the father's "own family and social circles" so that "those most likely charged with administering" the estate would know of the relationship. (§ 6453, subd. (b)(2).) We disagree. "Each case depends upon its own circumstances as to whether an affirmative representation was unconcealed and made in open view." (Britel, supra, 236 Cal.App.4th at p. 139.) "[T]he statute does not require an announcement to the world" and a father need not " 'declare his paternity under all circumstances.' " (Ibid.) Public acknowledgement may be found lacking where decedent conceals paternity from " 'immediate relatives' " (ibid.), but a paternity claim is not necessarily negated by the fact that a man secretes a child born of an extra marital affair from his wife and marital children. The evidence here established that Smith was "extremely protective of his children" and "did not want them to be hurt by news of his extramarital affair." Smith was also protective of his public reputation as a professional football player and concerned that the inter-racial nature of the relationship would create a "scandal."
Paternity can be established if the decedent "has openly held out the child as his own" in some public fashion. (§ 6453, subd. (b)(2).) The evidence here established that Smith held out plaintiff as his son to numerous people and never asked them to conceal the fact of his paternity. As the trial court found, Smith "openly and publicly acknowledged" plaintiff to be his son "on several occasions" within plaintiff's "family and social circles." Viewing the totality of the circumstances, Smith "openly held out the child as his own" as necessary to establish legal paternity. (Ibid.) Smith "acknowledged" his paternity in showing " ' "by word or act that one has knowledge of and agrees to (a fact or truth) . . . [or] concede to be real or true . . . [or] admit" ' " (Burden, supra, 146 Cal.App.4th at pp. 1028-1029) and "made an unconcealed affirmative representation of his paternity in open view" (Britel, supra, 236 Cal.App.4th at p. 139).
Plaintiff has standing to contest the validity of the trust. We express no opinion on the merits of that contest.
Disposition
The order is reversed and the matter remanded to the trial court for further proceedings consistent with this opinion.
/s/_________
Pollak, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.