Opinion
G052910
11-07-2017
NANCI S. ROBINS, Individually and as Trustee, etc., Plaintiff and Appellant, v. JOSEPH P. FERRY, as Administrator, etc., Real Party in Interest; CATHY OSTROW et al., Objectors and Respondents.
Soto Law Group and Romelia DeDe Soto for Plaintiff and Appellant. No appearance for Real Party in Interest and Respondent. Alan D. Davis for Objector and Respondent Cathy Ostrow.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2013-00683648) OPINION Appeal from an order of the Superior Court of Orange County, Monica L. Scheetz, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Soto Law Group and Romelia DeDe Soto for Plaintiff and Appellant. No appearance for Real Party in Interest and Respondent. Alan D. Davis for Objector and Respondent Cathy Ostrow.
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INTRODUCTION
Nanci S. Robins offered the will and codicil of her mother, Laura S. Sherman (Laura), for probate. The trial court admitted the will and codicil. Another of Laura's daughters, Cathy Ostrow, sought reconsideration of the probate order on the ground it was untimely pursuant to Probate Code section 8226, subdivision (c) (section 8226(c)). Finding merit in Ostrow's argument, the court granted the motion for reconsideration. Robins filed a motion to vacate the order granting reconsideration. The trial court denied the motion, and Robins appealed.
We affirm. The trial court did not err in reconsidering its original order to admit the will and codicil to probate. Based on the evidence presented, the court properly concluded that Robins's petition for probate was untimely under section 8226(c).
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Laura died on November 5, 2012. Laura had established the Honeywood Trust in 1985. Laura's will, which Robins sought to admit to probate, is a pourover will; except for some specific bequests, the will purports to give the residue of Laura's estate to the Honeywood Trust. Laura's daughters Nanci S. Robins, Cathy Ostrow, and Leslie Sherman are the beneficiaries of the Honeywood Trust. Robins's attorney placed Laura's purported will and codicil with the court for safekeeping in August 2013, in a separate matter.
Desert Green Solar Farm LLC (Desert Green) had an option to acquire a piece of property of which Laura owned a portion at the time of her death. In 2013, Desert Green filed a petition to appoint Joseph P. Ferry as the administrator of Laura's estate, alleging that Laura had died intestate. A notice of petition to administer Laura's estate was filed with the court on October 31, 2013; the notice was mailed to "Nanci S. Robins." The court appointed Ferry as administrator. Robins filed a motion to set aside or vacate the order appointing Ferry as administrator. The trial court denied Robins's motion, and this court affirmed that order. (Robins v. Ferry, G051316, June 22, 2016, opn. mod. July 20, 2016 [nonpub. opn.].)
Robins filed a petition to probate Laura's will on October 15, 2014. Ostrow, joined by Leslie Sherman, filed an objection to Robins's petition, pursuant to section 8226(c), on the ground Robins had notice of the petition to administer the estate but failed to timely submit the will for probate. After reviewing the court's record, the trial court found that Robins had not received notice of the petition to administer the estate, and therefore admitted to probate the will and codicil attached to Robins's petition (the December 23 order).
Ostrow filed a motion for reconsideration of the December 23 order. Ostrow's motion was based on the existence of a document in the court's file that showed Robins received notice of Desert Green's petition in October 2013, making Robins's petition for probate of Laura's will untimely. The trial court found the notice was in the court's file, but had been mislabeled, and therefore overlooked when the court entered the December 23 order. Based on this new evidence, the court granted Ostrow's motion for reconsideration (the January 23 order). At the trial court's request, Ostrow's counsel prepared and submitted to the trial court a proposed formal order. The court, however, never signed the proposed order.
Robins filed a motion to vacate the January 23 order. The court denied Robins's motion (the October 5 order). Robins appeals from the October 5 order.
Ostrow challenges the appealability of the October 5 order on the ground the issues presented were addressed in our earlier unpublished opinion, Robins v. Ferry, supra, G051316. The issue presented in that appeal was whether the trial court erred in denying Robins's motion to set aside the order appointing a special administrator over Laura's estate, pursuant to Desert Green's request. The previous opinion by this court does not affect the appealability of the October 5 order.
DISCUSSION
We review the trial court's order denying Robins's motion to vacate for abuse of discretion. (See Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257-258 [motion to vacate]; County of Los Angeles v. James (2007) 152 Cal.App.4th 253, 256 [motion for reconsideration]; Estate of Lewy (1976) 61 Cal.App.3d 635, 645 [probate orders].) To determine whether the trial court abused its discretion in denying Robins's motion to vacate, we must consider the full history of the orders preceding it.
Initially, the trial court admitted the will and codicil proposed by Robins, despite the previous order determining Laura to have died intestate. The court did so because it found that Robins had not received notice of Desert Green's petition for appointment of an administrator of Laura's estate. This rule of law is set forth in section 8226(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." (Ibid.) "Section 8226(c) does not . . . require that the proponent of the will have notice of the probate proceedings generally; rather, it requires that he has received notice of the petition for letters of administration." (Estate of Kelly (2009) 172 Cal.App.4th 1367, 1374.)
Section 8226(c) is a statute of repose, which "effect[s] a legislative judgment that a defendant should 'be free from liability after the legislatively determined period of time,'" after which "'liability will no longer exist and will not be tolled for any reason.'" (CTS Corp. v. Waldburger (2014) 573 U.S. ___ [134 S.Ct. 2175, 2183].) A statute of repose places an absolute time limit on the right to bring a civil cause of action beyond which no claim exists and, therefore, is not subject to equitable tolling. (Inco Development Corp. v. Superior Court (2005) 131 Cal.App.4th 1014, 1019-1020 (Inco Development); Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370 [holding that equitable tolling does not apply to statutes of repose as opposed to statutes of limitations].) Unlike a statute of limitations, which cuts off a plaintiff's existing right to bring a cause of action, a statute of repose prevents a cause of action from coming into existence. (Inco Development, supra, 131 Cal.App.4th at p. 1020.) Regardless of whether any injury has resulted or a cause of action has accrued, a statute of repose begins to run when a specific event occurs. (Giest v. Sequoia Ventures, Inc. (2000) 83 Cal.App.4th 300, 305.) After the specified time, a statute of repose bars all claims even if no cause of action has yet accrued. (CTS Corp. v. Waldburger, supra, 573 U.S. ___ .)
Robins was provided notice of Desert Green's petition for letters of administration. Ferry was appointed as the administrator of Laura's estate on December 5, 2013; the order of appointment found Laura died intestate. Robins thus had 120 days from December 5—April 4, 2014—to petition for probate of Laura's will. Robins's petition for probate, filed on October 15, 2014, was untimely.
It is clear that Robins had knowledge of Laura's will no later than August 22, 2013, when her attorney deposited it with the court for safekeeping. Therefore, 100 days from the date of notice of the order determining Laura to be intestate would be the latest possible date to file a petition for probate.
Robins argues, however, that she filed the petition for probate of Laura's will in her capacity as the trustee of the Honeywood Trust, but notice of Desert Green's petition for appointment of an administrator was not provided to her in that capacity. The notice was provided to "Nanci S. Robins." Robins contends that because she brought the petition to admit Laura's will to probate as the trustee of the Honeywood Trust, she would only be barred by section 8226(c) if she received notice of Desert Green's petition in her capacity as trustee. As to the issue of receipt of the notice, Robins is deemed to have received notice based on the mailing of the notice of petition to administer the estate. Robins does not raise any issue about that document not having been mailed as it specifies. As with other types of service, actual receipt of the document need not be proven, as long as it was served properly.
As to Robins's capacity, she fails to provide any authority for her argument that notice properly received by her provided notice to her only in one particular capacity. But even if Robins's argument were correct, it would not matter because Robins could have filed the petition for probate as the trustee of the Honeywood Trust or as an individual. Robins contends that only the trustee had standing to file a petition to admit the will to probate. Probate Code section 8000, subdivision (a) provides that "any interested person may commence proceedings for the administration of the estate of the decedent." Robins, as an individual, is a beneficiary of the trust that is allegedly entitled to the bulk of Laura's estate; Robins would have had standing to file the petition in her capacity as an individual.
Robins also argues that she never received notice because notice was not mailed to her attorney. Probate Code section 1214 provides: "If a notice or other paper is required or permitted to be mailed, delivered, served, or otherwise given to a person who is represented by an attorney of record, the notice or other paper shall also be mailed to this attorney, unless otherwise specified in a request for special notice." There is no question that Robins was represented by counsel generally in connection with issues surrounding Laura's estate and property. With respect to the notice of Desert Green's petition, however, there was no attorney of record for Robins in the action at the time Desert Green provided notice to Robins. Therefore, any failure to send a copy of the notice to the attorney does not affect the applicability of section 8226(c).
We note that another trial court judge made a finding that Robins received notice of the order appointing an administrator for Laura's estate, and thus of the court's finding that Laura died intestate, in both her individual capacity and in her capacity as trustee. In an order denying Robins's motion to set aside or vacate the order appointing the administrator (which was the focus of Robins v. Ferry, supra, G051316), the trial court specifically found, "Petitioner, Nanci S. Robins, was given all notices required by law for the appointment of Respondent, Joseph P. Ferry, as Special Administrator and general Administrator of the estate of Laura S. Sherman, and consented to the appointment of Respondent." (Italics added.) For all these reasons, the trial court's finding that Robins received notice in both her individual capacity and her capacity as trustee is supported by substantial evidence.
Robins also argues that the order admitting Laura's will and codicil to probate was a final judgment and the trial court lacked the authority to change it. Robins is incorrect. An order admitting a will to probate is made an appealable order by Probate Code section 1303, subdivision (b). But the right to appeal does not make the order final or conclusive. Indeed, the statutory scheme permits a will to be challenged either before the will is admitted to probate by written objection, or after it is admitted by a petition to revoke probate. (See Prob. Code, §§ 8004, 8250-8254, 8270-8272.) The trial court's order admitting the will to probate, therefore, did not deprive the court of the ability to amend, modify, or set aside that order.
The trial court has the authority to correct a mistake in its orders by means of reconsideration under Code of Civil Procedure section 1008, whether those orders are interim or final orders. (Code Civ. Proc., § 1008, subd. (e); In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1312.) Further, in Le Francois v. Goel (2005) 35 Cal.4th 1094, 1103, the California Supreme Court held "that notwithstanding [Code of Civil Procedure] sections 437c and 1008, a trial court has the inherent authority to revisit its previous orders, whether the court acts on its own motion or on motion of a party."
Robins argues that the December 23 order is final for purposes of res judicata, because the time to file an appeal from that order expired on February 27, 2015. The January 23 order, however, reconsidered and replaced the December 23 order, rendering Robins's argument moot. --------
Robins also argues that final judgments cannot be corrected, citing what she refers to as the Passavanti rule. In Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1604, the appellate court reversed a judgment following entry of an order granting summary judgment, finding there were triable issues of material fact. Before addressing the merits of the appeal, however, the court considered whether the appeal had been timely filed. (Ibid.) The court concluded that a motion for reconsideration of an appealable order that is not a final judgment will extend the time to file a notice of appeal from the order, but that a motion for reconsideration of a final judgment will not extend the time to file an appeal from the judgment. (Id. at p. 1605.) In reaching this conclusion, the appellate court drew certain comparisons between appealable interim orders and final judgments. (Id. at pp. 1605-1607.) One of those comparisons, on which Robins relies, is that "[o]nce judgment has been entered . . . the court may not reconsider it and loses its unrestricted power to change the judgment. It may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment." (Id. at p. 1606.) What Robins fails to acknowledge, however, is the Passavanti court's key distinction between appealable interim orders and judgments: "The fundamental distinction remains, however, that a judgment, no matter how designated, is the final determination of the rights of the parties in an action." (Ibid.)
Ultimately, the Passavanti court held that while the motion for reconsideration could not extend the time to file a notice of appeal from a judgment, the trial court had the discretion to construe the motion for reconsideration as a motion for a new trial or a motion to vacate, which would extend the time for filing a notice of appeal. (Id. at pp. 1608-1610.) And, while the appellate court recognized that it should not engage in the process of construing a motion as something different than its title, it was required to do so in that case as a matter of fairness because its previous decisions had held such a practice was permissible. (Id. at pp. 1610-1611.)
In the case before us, the order admitting Laura's will and codicil to probate was not a final determination of the parties' rights. The order merely purported to start the process of distributing Laura's estate; it did not finally determine the rights of any individual or entity to receive anything from the estate. Thus, Robins's reliance on Passavanti is misplaced.
For the first time at oral argument, Robins argued that the probate court is prohibited from using Code of Civil Procedure section 1008 to reconsider an order. This argument has been forfeited. (People v. Pena (2004) 32 Cal.4th 389, 403.)
Even if we were to consider Robins's argument, we would reject it as being without merit. Probate Code section 1000 provides: "Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions . . . apply to, and constitute the rules of practice in, proceedings under this code." Robins does not and cannot identify any Probate Code section making Code of Civil Procedure section 1008 inapplicable. Robins's argument that nothing in the Probate Code makes that section applicable misreads and misinterprets Probate Code section 1000.
DISPOSITION
The order is affirmed. Respondent to recover costs on appeal.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.