Opinion
F075702
09-18-2018
Estate of HELEN LOUISE SMITH, Deceased. GREGORY SMITH, Plaintiff and Appellant, v. MARY F. GALLAGHER, Individually and as Administrator, etc., Defendant and Respondent.
Dambacher, Trujillo & Associates and Gary P. Dambacher for Plaintiff and Appellant. Law Office of Nini Lee and Nini Lee for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PR11349)
OPINION
APPEAL from a judgment of the Superior Court of Tuolumne County. Kate P. Segerstrom, Judge. Dambacher, Trujillo & Associates and Gary P. Dambacher for Plaintiff and Appellant. Law Office of Nini Lee and Nini Lee for Defendant and Respondent.
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INTRODUCTION
Appellant Gregory Smith challenges the court's determination that his attempt to introduce a copy of a holographic will into probate of the estate of his mother, Helen Louise Smith, was untimely under Probate Code section 8226. Section 8226, subdivision (c)(1), requires the proponent of a will to petition for probate within 120 days of an order determining the decedent to be intestate. Here, Gregory filed a petition for probate of the holographic will over 11 months after the court determined Helen died intestate. Despite the late filing, Gregory appeals the court's decision that the filing of the petition was untimely even assuming Gregory was entitled to the benefit of equitable tolling to extend the statute of limitations period. Upon review, we affirm the trial court's determination that the petition for probate of Helen's holographic will was untimely under section 8226.
Many of the individuals involved are members of the Smith family and share the same last name. First names are used to prevent confusion. No disrespect is intended.
All further statutory references are to the Probate Code, unless otherwise stated.
The parties dispute whether or not the holographic will is valid. We shall refer to the document as a holographic will for ease of reference, without addressing its validity, inasmuch as that is not an issue in this appeal.
FACTUAL BACKGROUND
The parties did not provide this court with a copy of the reporter's transcript from the trial. Accordingly, the facts recited herein are based on exhibits contained in the clerk's transcript and the factual findings as recited in the trial court's order after hearing.
On August 15, 1989, Helen executed a purported holographic will in the presence of Gregory. Helen died on April 29, 2015, and was survived by three sons, Gregory, Richard and Ronald, as well as three grandchildren, Kimberlee, Stephanee and Aimee, who are the issue of her predeceased son, Scott.
On June 13, 2015, Helen's heirs, including Gregory, met with attorney Douglas Schultz to discuss probate of the estate. On that date, all the heirs, including Gregory, signed documents indicating that they declined to serve as administrator of the estate, nominated professional fiduciary Mary Gallagher (respondent) as administrator, and waived bond. Gregory did not disclose that he had possession of Helen's handwritten will at this meeting.
Schultz filed a petition to administer the estate on July 22, 2015, alleging that Helen died intestate. On August 28, 2015, the court heard the matter, determined Helen to have died intestate and appointed Gallagher as administrator of the estate. Gregory personally attended the hearing but did not inform the court of the holographic will. After the court hearing, the heirs, including Gregory, and attorney Schultz met. Gregory notified Schultz of the holographic will and provided it to Schultz along with a comparison writing sample from Helen.
After possessing the will for roughly six months, Schultz mailed the will back to Gregory. Gregory received the will on March 7, 2016. Gregory then met with the newly retained attorney for the estate, Nini Lee, on March 24, 2016. At the meeting, Lee advised Gregory she was the attorney for the estate and did not represent Gregory individually; that she did not believe the document was a valid will; that she would not file a petition to submit the holographic will into probate; and that Gregory should seek his own counsel should he want to take action with regard to the holographic will.
At a hearing on July 8, 2016, Gregory objected to the sale of real property from the estate and told the court for the first time that he had Helen's holographic will. Lee argued that the deadline for filing objections to the sale had passed, but that she would follow up and speak to Gregory after the hearing.
Gregory filed a petition to probate the holographic will on August 3, 2016.
The court held a two-day trial regarding whether Gregory timely petitioned the court to admit the holographic will to probate. The court issued a written order after hearing on March 14, 2017 finding that Gregory's petition for probate of the holographic will was untimely. Under section 8226, the proponent of a will must petition for probate of the will either within 120 days after issuance of the order determining the decedent to be intestate or within 60 days after the proponent of the will first obtains knowledge of the holographic will. The court determined that, even providing Gregory the benefit of the latest potential commencement date, over 120 days passed before he petitioned for probate of the will. Gregory waited over 11 months from the date the court determined Helen died intestate, over 149 days from the date Schultz returned the holographic will to him, and 128 days from his March 24, 2016 meeting with attorney Lee to petition the court to admit the holographic will.
Moreover, the court found it concerning that Gregory testified that he possessed the holographic will from its inception in 1989, but did not reveal it at the meeting appointing Gallagher as the administrator of the estate on June 13, 2015, and that he attended the probate hearing on August 28, 2015, in which the court found that Helen died intestate, but did not object or otherwise comment regarding the holographic will. Accordingly, the court held that the petition for probate was untimely under section 8226.
DISCUSSION
On appeal, Gregory contends that he was unable to file a petition for probate during the time Schultz had possession of the holographic will, approximately August 28, 2015, to his receipt of the will from Schultz on March 7, 2016. He contends that the doctrine of equitable tolling should apply, and that the statute of limitations period should not run during the time the holographic will was in the possession of Schultz. He also requests tolling for the period thereafter because he was deterred from filing the petition for probate based on the comments of both Schultz and Lee, that the holographic will was not valid and the statute of limitations period had expired.
Gregory also raises a factual and legal argument that was not previously raised before the trial court. He claims that he did not have knowledge of the holographic will under section 8226, subdivision (c)(2), until the July 8, 2016 hearing and, therefore, his filing of the petition within 60 days thereafter was timely.
I. Standard of Review
Here, the application of a statute, namely section 8226, and the application of the doctrine of equitable tolling are at issue. The interpretation of statutes is a question of law that we review de novo. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.) "Because the interpretation and application of a statute are questions of law, an appellate court is not bound by the trial judge's interpretation." (Haworth v. Lira (1991) 232 Cal.App.3d 1362, 1367.) Instead, "we undertake our own interpretation of the determinative statute and assess any claims raised by the parties completely anew." (Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425.)
While some appellate courts appear to have reviewed equitable tolling rulings under the de novo standard, they have done so without expressly identifying a standard of review. (Addison v. State of California (1978) 21 Cal.3d 313, 321 ["As with other general equitable principles, application of the equitable tolling doctrine requires a balancing .... [¶] In our view, the balance in this case must be struck in [the] plaintiffs' favor."]; see Bonifield v. County of Nevada (2001) 94 Cal.App.4th 298, 306, disapproved on other grounds in City of Los Angeles v. County of Kern (2014) 59 Cal.4th 618, 634.) We need not resolve the issue of the standard of review applicable to equitable tolling because, regardless of the applicable legal standard, we would affirm the trial court's ruling. As we shall explain, under the facts presented, Gregory cannot benefit from application of the equitable tolling doctrine to the date he requests because he did not act diligently or reasonably in petitioning the court to admit the holographic will to probate and if we give Gregory the benefit of equitable tolling to the last reasonable date, his petition for probate was untimely.
Gregory did not raise below, and is precluded from raising the argument for the first time on appeal, that the court's factual findings were not supported by substantial evidence. Gregory did not provide trial transcripts in this appeal. "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error." (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) "The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence." (Ibid.; accord, Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324 ["It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error."].)
II. Analysis
Section 8226 provides:
"(a) If no person contests the validity of a will or petitions for revocation of probate of the will within the time provided in this chapter, admission of the will to probate is conclusive ....
"(b) Subject to subdivision (c), a will may be admitted to probate notwithstanding prior admission to probate of another will or prior distribution of property in the proceeding. The will may not affect property previously distributed, but the court may determine how any provision of the will affects property not yet distributed and how any provision of the will affects provisions of another will.
"(c) If the proponent of a will has received notice of a petition for probate or a petition for letters of administration for a general personal representative, the proponent of the will may petition for probate of the will only within the later of either of the following time periods:
"(1) One hundred twenty days after issuance of the order admitting the first will to probate or determining the decedent to be intestate.
"(2) Sixty days after the proponent of the will first obtains knowledge of the will." (Italics added.)
"[T]he filing deadlines apply not only to the situations covered by [section 8226,] subdivision (b) but also to the situations described in subdivision (c) [of section 8226], for example, filing a petition to probate a single will after a determination of intestacy." (Estate of Earley (2009) 173 Cal.App.4th 369, 375.) "[S]ection 8226 provides filing deadlines for admitting a will to probate regardless of whether another will has already been admitted to probate or whether estate proceedings have already commenced based on a determination of intestacy. This interpretation 'facilitate[s] the prompt administration of estates.' (Estate of Wilcox (1945) 68 Cal.App.2d 780, 786.)" (Id. at p. 377.)
It is without question that over 120 days passed from August 28, 2015, the date the court determined Helen to have died intestate, until Gregory petitioned for probate of the holographic will on August 3, 2016. Without tolling, the last day for filing a petition for probate was December 26, 2015. Here, the trial court provided Gregory the benefit of equitable tolling or estoppel, using the latest reasonable commencement date, and determined that the petition was still untimely under section 8226, subdivision (c).
"Equitable tolling is a judge-made doctrine 'which operates independently of the literal wording of the Code of Civil Procedure' to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness." (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370 (Centex Homes).) The California Supreme Court "has applied equitable tolling in carefully considered situations to prevent the unjust technical forfeiture of causes of action, where the defendant would suffer no prejudice." (Ibid.) "[T]he effect of equitable tolling is that the limitations period stops running during the tolling event, and begins to run again only when the tolling event has concluded. As a consequence, the tolled interval, no matter when it took place, is tacked onto the end of the limitations period, thus extending the deadline for suit by the entire length of time during which the tolling event previously occurred." (Id. at pp. 370-371, fn. omitted.)
Further, like similar equitable doctrines of estoppel or fraudulent concealment, equitable tolling requires that the movant exercise reasonable diligence. (See, e.g., Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 936; accord, Sagehorn v. Engle (2006) 141 Cal.App.4th 452, 461.)
"[E]quitable tolling should not apply if it is 'inconsistent with the text of the relevant statute' [citations] ...." (Centex Homes, supra, 31 Cal.4th at p. 371.) "'As with other general equitable principles, application of the equitable tolling doctrine requires a balancing of the injustice to the plaintiff occasioned by the bar of his claim against the effect upon the important public interest or policy expressed by the ... limitations statute.'" (Ibid.) "Tolling is permissible only where there is a particular indication that the legislature did not intend the statute to provide complete repose but instead anticipated the extension of the statutory period under certain circumstances." (California Public Employees' Retirement System v. ANZ Securities, Inc. (2017) ___ U.S. ___ [137 S.Ct. 2042, 2050].)
No California court has determined whether the doctrine of equitable tolling applies to the statute of limitations set forth in section 8226, subdivision (c). Like the trial court, we need not determine whether the limitations periods of section 8226 are subject to equitable tolling principles. Even assuming for the sake of argument that Gregory may benefit from equitable tolling, we find there was sufficient evidence to support the trial court's holding that the petition for probate of the holographic will was nonetheless untimely filed.
It should be noted that it is quite possible equitable tolling is not permissible under section 8226. As mentioned, the deadlines set forth in section 8226 "facilitate the prompt administration of estates." (Estate of Wilcox, supra, 68 Cal.App.2d at p. 786.) Should section 8226, subdivision (c), be considered a statute of repose rather than a statute of limitations, it would place an absolute time limit on the right to bring a civil cause of action beyond which no claim exists and, therefore, would not be subject to equitable tolling. (Inco Development Corp. v. Superior Court (2005) 131 Cal.App.4th 1014, 1019-1020; Centex Homes, supra, 31 Cal.4th at p. 368 [holding that equitable tolling does not apply to statutes of repose as opposed to statutes of limitations].)
The trial court assumed that attorney Schultz's possession of the holographic will for roughly six months served as an impediment to Gregory's filing the petition for probate. The trial court even further assumed that the tolling event continued until Gregory's March 24, 2016, meeting with Lee, after he received the will back from Schultz on March 7, 2016. At that meeting, Gregory was expressly advised by the estate attorney to get his own attorney if he wished to proceed on the holographic will. Even so, over 120 days passed before Gregory filed the petition for probate. Using the latest possible date of March 24, 2016, the 120-day filing deadline expired on July 22, 2016, and Gregory filed the petition on August 3, 2016.
At the time of the March 24, 2016, meeting, Gregory was in personal possession of the holographic will. The trial court found that Lee advised Gregory to obtain his own counsel to act should he wish to pursue his rights to admit the holographic will into probate. No impediments prevented Gregory from petitioning the court at that time. His delay of more than 120 days in filing the petition evinces a lack of diligence separate and apart from any impediment created by Schultz. Despite having possession of the holographic will and express notice from Lee that he needed to act should he wish to enter the holographic will into probate, Gregory failed to act promptly.
Gregory attributes his continued delay to the opinion of Lee that the holographic will was not valid and that the time period for filing had passed. Equitable tolling is only available where the circumstances that caused a litigant's delay are both extraordinary and beyond his control. (Menominee Indian Tribe v. United States (2016) ___ U.S. ___ [136 S.Ct. 750, 756].)
Gregory may have been discouraged to hear that the estate attorney thought his chances of success with regard to petitioning for probate of the holographic will was low because the application was untimely and the will potentially invalid, but that was not a sufficiently extraordinary circumstance justifying continued delay and warranting equitable tolling. Continuing to toll the statute at that point would interfere with the prompt administration of the estate, frustrate the sale and distribution of estate assets and cause uncertainty, all to the detriment of the other beneficiaries. Garden variety claims of excusable neglect, "such as a simple 'miscalculation' that leads a lawyer to miss a filing deadline, [citation], does not warrant equitable tolling." (Holland v. Florida (2010) 560 U.S. 631, 651-652.) Likewise, an individual's ignorance of the law is not considered an extraordinary circumstance sufficient to warrant equitable tolling. (Rasberry v. Garcia (9th Cir. 2006) 448 F.3d 1150, 1154.) The requirements for finding equitable tolling are "'very high, lest the exceptions swallow the rule.'" (Yow Ming Yeh v. Martel (9th Cir. 2014) 751 F.3d 1075, 1077.) The court did not err in finding that Gregory was not entitled to equitable tolling or that the petition for probate was untimely under section 8226.
Gregory raises an additional theory regarding why the petition was not timely filed for the first time on appeal. He claims that he filed the petition within the 60-day deadline of "first obtain[ing] knowledge of the will" under section 8226, subdivision (c)(2). Gregory argues that despite observing his mother draft the holographic will and having it in his possession for decades, he only discovered the nature of the document upon hearing argument at the July 8, 2016, hearing in which Lee argued that the holographic will was not valid.
In his posttrial briefing before the trial court, Gregory specifically disclaimed that the 60-day time limit under section 8226, subdivision (c)(2), was applicable to this case. Gregory explained that he knew the document was Helen's will because both Helen and his father told him it was her will and that his parents left it in his possession for safekeeping.
"'It is the general rule that a party to an action may not, for the first time on appeal, change the theory of the cause of action. [Citations.] There are exceptions but the general rule is especially true when the theory newly presented involves controverted questions of fact or mixed questions of law and fact.... [I]f the new theory contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial the opposing party should not be required to defend against it on appeal.'" (Krechuniak v. Noorzoy (2017) 11 Cal.App.5th 713, 725, quoting Panopulos v. Maderis (1956) 47 Cal.2d 337, 340-341.) Gregory is precluded from arguing on appeal that he filed the petition for probate within 60 days of obtaining knowledge of the holographic will.
Moreover, without submitting trial transcripts, Gregory is not able to challenge factual findings made by the trial court, including that he was placed on notice over three months earlier when he was told by Lee at the March 24, 2016, meeting that he should obtain an attorney should he want to act on the holographic will in his possession. In any event, discovering that the handwritten will he had in his possession for so long was a holographic will has not material bearing on whether the petition to probate it was timely. --------
DISPOSITION
The judgment is affirmed. Respondent is entitled to her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
POOCHIGIAN, J.