Opinion
H050477
03-14-2024
Estate of CASIMIRO C. AMEZCUA, Deceased. v. AMALIA AMEZCUA, Objector and Appellant. VERONICA AMEZCUA, Petitioner and Respondent,
NOT TO BE PUBLISHED
San Benito County Super. Ct. No. PR-22-00011
BROMBERG, J.
When a party seeks to probate a will, but the original has been lost or destroyed, California courts employ a "lost will presumption." If the lost or destroyed will was last in the testator's possession but the will cannot be found after his or her death, and the testator was competent until death, courts presume that the testator destroyed the will with an intent to revoke it. (See Estate of Obernolte (1979) 91 Cal.App.3d 124, 129, fn. 7 (Obernolte); see also In re Janes' Estate (1941) 18 Cal.2d 512, 518 ["The stringent requirements for proof of lost or destroyed wills are imposed to avoid fraud"].) Appellant Amalia Amezcua argues that the probate court violated the lost will presumption-which is codified in section 6124 of the Probate Code (Section 6124)-by admitting a copy of a lost will presented by her stepdaughter, Veronica Amezcua, without any evidence rebutting the presumption.
However, Amalia did not ask the probate court to apply the presumption in opposing Veronica's petition to admit the will in question here. Because her counsel did not become aware of the lost will presumption until later, Amalia did not invoke the presumption until a motion for reconsideration after the court admitted the lost will. The probate court refused to consider the presumption because it found counsel's error unreasonable and inexcusable. On appeal, Amalia does not challenge this ruling. Instead, she argues that the probate court should have applied the lost will presumption in its initial order admitting the will submitted by Veronica even though she failed to ask the court to apply the presumption. We disagree and conclude instead that Amalia forfeited her objection concerning the lost will presumption by not raising the presumption in opposing probate of the will. However, because Amalia's arguments concerning the lost will presumption are not entirely without merit, we deny Veronica's motion for sanctions.
Because the parties share the same last name, for the sake of clarity, we generally refer to the parties by their first names. In so doing, we intend no disrespect.
I. Background
Casimiro C. Amezcua died in September 2021. He was survived by his daughter Veronica and three other children from his first marriage, as well as his second wife, Amelia, with whom he began living in 1989 and whom he married in 2003.
In February 2022, Veronica filed a petition for probate, seeking admission of a lost 2001 will and requesting appointment as executor of the will. In the petition, which was on a mandatory Judicial Council form, Veronica checked the box indicating that "[t]he original of the will . . . has been lost." The form instructed Veronica to include a copy of the will in an attachment and "state reasons in that attachment why the presumption in Prob. Code, § 6124 does not apply." While Veronica attached a copy of the will she sought to probate, she failed to explain why the presumption does not apply.
The copy of the will, which is five pages long, is dated March 29, 2001. In it, decedent declared that he is a single man with five living children, one of whom later predeceased him. In addition, the will bequeaths all of decedent's property to his children, without making any provision for Amalia.
While most of the will appears to have been prepared on a word processor, it contains lines for decedent's signature and for the signatures of two witnesses which appear to be typewritten with the symbol "s/" above the names. In addition, the number "29" is handwritten into the date before decedent's signature, indicating the date of the will to be March 29, 2001. The number "29" is also handwritten before signatures of the witnesses, but those signatures are dated March 29, 2000, rather than March 29, 2001.
In her petition to probate the lost will, Veronica identified herself and her surviving siblings as the individuals with an interest in decedent's estate but did not mention Amalia. In addition, the petition checked boxes indicating that decedent had no spouse (because he was divorced or never married) and had no registered domestic partner.
In April 2022, a few days before the hearing on Veronica's petition, Amalia filed a verified objection, opposing both probate of the lost will and Veronica's appointment as executor of the will. Amalia objected that the will attached to the petition was not an original, that it was executed before decedent married her, and that she had not waived her rights in her husband's estate. Amalia also objected to Veronica's appointment as executor on the ground that the petition filed by Veronica falsely stated that decedent was unmarried, and that Veronica had not provided her with timely notice of the hearing. Finally, as the surviving spouse of the decedent, Amalia requested that she be appointed administrator of decedent's estate.
After Veronica filed an answer to Amalia's objections which acknowledged that decedent had married Amalia, the probate court held a hearing. In a minute order later formalized into a final order filed on June 8, 2022 (the June 2022 order), the court admitted the lost will and appointed Veronica as the executor. In so doing, the probate court noted that, if the decedent married after executing the will, the will would be "revoked . . . to the extent of the surviving, omitted spouse's statutory share."
Subsequently, Amalia filed motions for reconsideration, for a new trial, and for relief from mistake. In these motions, Amalia raised two new arguments. First, she argued that the lost will should be rejected because Section 6124 creates a presumption that the decedent's lost will was revoked, which Veronica failed to rebut. Second, Amalia argued that the lost will was defective because it did not contain any handwritten signatures, because the witnesses' signatures are dated a year before the decedent's, and because the will had been altered by the handwritten addition of dates for the signatures. While Amalia acknowledged she did not make these arguments in opposing the petition, she argued that the failure was due to error by her attorney, who submitted a declaration admitting that she had not dealt with lost wills before and was unaware of the lost will presumption when the will at issue was probated.
On September 22, 2022, the probate court denied Amalia's motions. The court denied Amalia's motion for reconsideration on the ground that she had failed to state any new facts or law warranting reconsideration. It denied Amalia's request for relief from mistake on the ground that Code of Civil Procedure section 437 generally allows such relief only for excusable mistakes and "[m]ere ignorance of the law coupled with negligence in ascertaining the law" is not excusable. The probate court also rejected Amalia's request for a new trial on the ground that Amalia had failed to file a notice of intent to move for a new trial. Finally, the court refused Amalia's request to amend her pleadings to request appointment as executor because she had not filed a counter-petition for appointment. The court, however, denied Veronica's request for sanctions, finding that she had not shown that sanctions were warranted.
Amalia filed a timely notice of appeal on October 10, 2022. We have appellate jurisdiction under Probate Code section 1303, subdivision (b).
II. Discussion
A. Amalia's Appeal
Amalia appeals from the June 2022 order admitting decedent's lost will and appointing Veronica as executor of the will. As she did in her motion for reconsideration, Amalia argues that the lost will should not have been admitted because Veronica failed to rebut the lost will presumption in Section 6124, and because the will is unsigned and contains irregularities. Amalia, however, forfeited these arguments by not raising them before the June 2022 order, and she has not appealed the denial of her subsequent motions seeking to raise these arguments.
Amalia's notice of appeal purports to appeal from the probate court's September 20, 2022 order denying the motions for reconsideration, relief from mistake, and new trial. Her briefs, however, address the underlying June 2022 order. As Veronica does not contend that she was misled or prejudiced by this discrepancy, we construe Amalia's notice of appeal to encompass the June 2022 order. (See, e.g., K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 884-885 [construing notice of appeal identifying order denying new trial to encompass underlying judgment].)
Section 6124 provides in full: "If the testator's will was last in the testator's possession, the testator was competent until death, and neither the will nor a duplicate original can be found after the testator's death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence."
"' "As a general rule, theories not raised in the trial court cannot be asserted for the first time on appeal ...." '" (Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 548; see also Estate of Cooper (1970) 11 Cal.App.3d 1114, 1123 [These "settled principle of appellate review . . . are applicable to appeals in probate proceedings. [Citations]."].) There are exceptions to this general rule: For example, arguments that raise pure questions of law may be considered in the first instances on appeal. (See, e.g., Ward v. Taggart (1959) 51 Cal.2d 736 742; Eisen v. Tavangarian (2019) 36 Cal.App.5th 626, 637.) However, the general rule against entertaining new arguments on appeal is "stringently applied when the new theory depends on controverted factual questions whose relevance thereto was not made to appear at trial." (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 780.)
Here, Amalia did not make any arguments regarding the lost will presumption or defects in objecting to the petition to probate the will in the probate court. Moreover, her arguments on appeal do not raise pure questions of law. Section 6124 creates a presumption that a lost will was revoked if the will "was last in the testator's possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator's death." (Prob. Code, § 6124.) Thus, to invoke the presumption, three threshold findings must be made: (1) the will was last in the testator's possession, (2) the testator was competent until death, and (3) neither the will nor a duplicate original can be found after his or her death. (See, e.g., Obernoltet supra, 91 Cal.App.3d at p. 128.) In addition, because the lost will presumption is merely "a presumption affecting the burden of producing evidence" (Prob. Code, § 6124), it may be rebutted. (Evid. Code, § 604 ["[t]he effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence"].) Consequently, application of the lost will presumption raises multiple factual issues which Veronica should have been given an opportunity to address in the probate court.
The same is true with respect to Amalia's underlying arguments that the lost will was defective. Amalia argues that the lost will is suspect because it lacks actual signatures, because decedent's signature is dated a year after the witnesses' signatures, and because some numbers have been handwritten into the will. However, even when a will is not properly witnessed, it may nonetheless be enforced if the proponent of the will shows, by clear and convincing evidence, that the testator intended the will to constitute his or her will. (Prob. Code, § 6110, subd. (c)(2); see also Estate of Berger (2023) 91 Cal.App.5th 1293, 1303 [noting that the Legislature has "authorize[d] a probate court to give effect to a defectively drafted will when the drafter's intent to do so is particularly compelling"].) As a consequence, Amalia's arguments concerning the defects in the will raise factual issues, which Veronica should have had an opportunity to address in the probate court.
Amalia's failure to raise these arguments in objecting to the petition to admit the will in the probate court bars her from raising these arguments on appeal." 'Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider.' [Citation.]" (Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748, 769, quoting JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.) Moreover," 'an appeal reviews the correctness of a judgment at the time of its rendition . . .' [citation]" (In re Zeth S. (2003) 31 Cal.4th 396, 405), and therefore error cannot be found based on matters occurring after an order or judgment. (In re Francisco W. (2006) 139 Cal.App.4th 695, 706 [" 'error on the part of the inferior court cannot be predicated by reason of any matter occurring subsequent to its rendition of the judgment' "].) Therefore, the probate court's June 2022 order admitting the lost will cannot be challenged based on arguments that Amalia failed to advance before the order.
It is true that Amalia raised the lost will presumption and asserted defects in the will after the June 2022 order in her motion for reconsideration and a motion for relief from mistake. The probate court, however, declined to entertain these arguments, and far from showing that the court abused its discretion in doing so, Amalia has chosen not to challenge these procedural rulings on appeal. (Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 ["' "Issues not raised in an appellant's brief are deemed waived or abandoned."' "].) Accordingly, we conclude that Amalia's challenges to the June 2022 order have been forfeited.
In addition, even if Amalia had not forfeited these challenges, they would fail for another reason: Amalia chose not to include in the appellate record a reporter's transcript, settlement statement, or other record of the hearings before the probate court. It is a "fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct ...." (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) As a consequence, "[a]ll intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564), including the presumption that" 'the record contains evidence to support every finding of fact[.]' [Citations.]" (Marriage of Fink (1979) 25 Cal.3d 877, 887.) This means that "[w]here 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." (In re Estate of Fain (1999) 75 Cal.App.4th 973, 992, original italics.) Here, because Amalia elected to proceed without a reporter's transcript or other record of the probate court hearing, we must presume that such a transcript would demonstrate the absence of error. (Ibid.; see also Jameson, supra, 5 Cal.5th at p. 755 [" 'In the absence of a contrary showing in the record . . ., "if any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented."' "].)
Because we conclude that Amalia's challenges to the June 2022 order have been forfeited and, in any event, cannot succeed in light of her failure to designate an adequate record, we do not need to address Veronica's arguments concerning lack of service, mootness, and other matters. In addition, because Amalia has not offered any argument challenging the order appointing Veronica as executor, we affirm the order. (See, e.g., Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418 [" 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' "].)
B. Veronica's Motion for Sanctions
Veronica has moved for monetary sanctions, attorney fees, and costs incurred on appeal, on the ground that the appeal is frivolous and was brought solely to delay administration of the will. The California Supreme Court, however, has cautioned that, to "avoid a serious chilling effect on the assertion of litigants' rights on appeal," sanctions must be used "most sparingly to deter only the most egregious conduct." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650-651.) Consequently, sanctions may not be awarded on appeal unless the appeal is "totally and completely without merit." (Id. at p. 650.) As the probate court appears to have recognized in declining to impose sanctions at trial, Amalia's arguments concerning the lost will presumption and the defects in the will are not totally and completely without merit. Accordingly, we decline to impose sanctions on appeal.
III. Disposition
The June 2022 order is affirmed, and respondent's motion for sanctions is denied. Respondent is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(2).)
WE CONCUR: BAMATTRE-MANOUKIAN, ACTING P. J.