Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Ct. No. BP110047, Mitchell L. Beckloff, Judge.
Kerendian & Associates, Inc., Shab D. Kerendian, Shawn S. Kerendian, Verlan Y. Kwan and Marc E. Angelucci for Appellant.
No appearance for Petitioners and Respondents.
ALDRICH, J.
Daniel Gibson, successor trustee to the Teace Jane Schlorff Family Trust (the trust) and sole beneficiary under the trust, appeals from an order after a hearing on a petition brought under Probate Code sections 850 and 17200.1 to determine the validity of the trust. The probate court concluded the trust was void because the settlor lacked mental capacity, was unduly influenced by Gibson, and never transferred the principal asset, real property located at 12141 Adrian Street, Garden Grove, California (the Adrian property), into the trust. Gibson did not file objections to the petition and claimed excusable neglect as a basis to seek discretionary relief from the order under Code of Civil Procedure section 473. The probate court denied the discretionary relief. Gibson purports to appeal from the order denying discretionary relief and the order voiding the trust. We dismiss the appeal from the order denying discretionary relief as taken from a nonappealable order in probate proceedings, and we affirm the order determining that the trust is void.
Probate Code section 850 states in pertinent part: “(a) The following persons may file a petition requesting that the court make an order under this part: [¶]... [¶] (3) The trustee or any interested person in any of the following cases: [¶] (A) Where the trustee is in possession of, or holds title to, real or personal property, and the property, or some interest, is claimed to belong to another.”
Probate Code section 17200.1 states: “All proceedings concerning the transfer of property of the trust shall be conducted pursuant to the provisions of Part 19 (commencing with Section 850) of Division 2.”
FACTUAL AND PROCEDURAL HISTORY
1. Factual Allegations
Petitioners are the daughter and son of the decedent. They filed a petition to determine the validity of a trust their mother created, which disinherited them and left the Adrian property to Gibson. Their first petition was denied without prejudice on August 26, 2008. They filed the second and operative petition in May 2009.
a. Petition to Invalidate the Trust
Teace Jane Schlorff died January 30, 2003. Gibson, the decedent’s nephew, informed the petitioners he was administering the decedent’s estate, but he did not tell them their mother had executed a trust until June 25, 2007, more than three years after he sold the Adrian property to a third-party purchaser.
Gibson did not give timely notice pursuant to Probate Code section 16061.7. That statute requires a trustee to give notice to each heir of the deceased settlor, when a revocable trust becomes irrevocable. (Prob. Code, § 16061.7, subds. (a)(1), (b)(2).)
The decedent, as settlor, created a revocable living trust. The trust states the decedent as “[t]rustor does hereby intend to transfer” the Adrian property into the trust (¶ II.). The trust document, however, does not list the trust property.
The decedent appointed Gibson as the successor trustee (¶ III.). Gibson was the primary beneficiary and received all the trust property upon decedent’s death (¶ VIII.). Pursuant to the trust, the decedent omitted her children as beneficiaries of the trust (¶ VIII.), and the decedent revoked any previous wills (¶ XI.). The decedent had prepared a will in 1988, naming as her sole beneficiary petitioner Michelle Mabini-Smith.
Title to the Adrian property was never transferred into the trust. On March 26, 2003, Gibson requested the recording of a grant deed to transfer the Adrian property to him as successor trustee. On March 17, 2004, Gibson recorded an “Affidavit - Death of Trustee, ” stating he was the successor trustee. Thereafter, on April 21, 2004, Gibson recorded a grant deed transferring the Adrian property to Ariel Agrazsanchez (the purchaser). Gibson allegedly used the proceeds from the sale of the Adrian property to purchase real property.
At the time the decedent executed the trust documents, the petitioners maintained the decedent did not have sufficient mental capacity to “recollect the nature and situation of her property, ” and to “remember and understand her relations to her family members.” The decedent suffered from depression and alcoholism for approximately 30 years, “and had made at least one previous attempt to commit suicide.” She was “so severely depressed... that she took her own life on January 30th, 2003.”
The decedent also was under Gibson’s influence arising from her isolation from her other family members, dependence upon Gibson, her strong religious beliefs, and their shared history of alcoholism. Gibson is a minister, and the decedent trusted him. Based upon this trust, Gibson took steps to isolate the decedent from her other family members and did not contact them regarding the severity of the decedent’s depression during the last few months of her life.
The decedent also did not intend to create the trust, and did not know the nature or the content of the trust documents.
b. Purchaser of the Adrian Property Filed Objections to the Petition
The purchaser of the Adrian property filed objections to the petition, which included a declaration from the decedent’s attorney and a letter from Gibson describing his relationship with the decedent. The decedent’s attorney stated he drafted the trust. He also stated that on the date the decedent executed the trust, she was “of sound mind, and under no constraint or undue influence.” Gibson stated it was the decedent’s intent to disinherit her children.
c. Supplement Petition Seeks to Void the Trust for Lack of Funding
Petitioners filed a supplement to the petition and served Gibson by mail. The supplement clarified that the trust also was void because the decedent did not transfer the Adrian property to the trust.
2. Procedural History
As noted, Gibson’s counsel did not file objections to the petition or to the supplement to the petition. The original hearing on the petition was continued. On June 30, 2009, Gibson was personally served with the petition and given notice of the July 30, 2009 hearing date. Under Probate Code section 1205, if a hearing is continued or postponed, no further notice is required unless ordered by the court.
On October 28, 2009, Gibson’s attorney withdrew as counsel, and thereafter Gibson represented himself in the probate proceedings. Gibson later learned that his attorney represented him while her license was inactive.
Gibson’s attorney turned over the file to him and advised him that petitioners’ motion for summary judgment was set for November 17, 2009. Gibson did not appear at the summary judgment hearing. Petitioners moved for summary judgment against the purchaser, contending the trust was void pursuant to Probate Code section 15202 because title to the Adrian property was not transferred to the trust. Summary judgment was denied. But, before the hearing on the petition, the petitioners settled with the purchaser of the Adrian property.
On April 5, 2010, the probate court ruled on the petition and determined that the trust was void due to the decedent’s lack of mental capacity, Gibson’s undue influence, and lack of funding. According to the order and the reporter’s transcript, the probate court based its ruling on the verified documents submitted to the court. Notice of this order was served on Gibson by mail.
The first contact Gibson had with the probate court appears to have been when his new counsel moved to set aside the order voiding the trust. Gibson moved pursuant to Code of Civil Procedure section 473, subdivision (b), contending excusable neglect because: (1) his former attorney represented him while her license was inactive; (2) the petition was not properly served on him; (3) he had no notice of the April 5, 2010 hearing; and (4) the petitioners did not have a good faith basis to make the allegations in the petition. At the hearing, Gibson’s counsel also faulted his former attorney for failing to file a joinder to the purchaser’s objections. After the hearing, the trial court took the matter under submission and later denied the motion.
This timely appeal followed. The appeal challenges the order denying the motion for discretionary relief, and the order determining that the trust is void.
DISCUSSION
1. The Order Denying Relief Is Not Appealable in Probate Proceedings
Gibson contends the probate court abused its discretion in denying his motion for discretionary relief under Code of Civil Procedure section 473, subdivision (b). Gibson contends the order is appealable under Code of Civil Procedure section 904.1, subdivision (a)(2) because it is an order made after an appealable judgment under subdivision (a)(1). That provision, however, does not govern this matter.
Petitioners did not file a respondent’s brief. We therefore “decide the appeal on the record [and on] the opening brief... by appellant.” (Cal. Rules of Court, rule 8.220(a)(2); see also D.H. Williams Construction, Inc. v. Clovis Unified School Dist. (2007) 146 Cal.App.4th 757, 763.)
Code of Civil Procedure section 904.1, subdivision (a)(10) states that an appeal may be taken “[f]rom an order made appealable by the provisions of the Probate Code or the Family Code.” (Code Civ. Proc., § 904.1, subd. (a)(10).) “ ‘There is no right to appeal from any orders in probate except those specified in the Probate Code.’ ” (Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1126.) Probate Code sections 1300 and 1304 govern this appeal. “The jurisdiction of an appellate court in probate matters extends only to such orders and judgments as are made appealable by the Probate Code. [Citation.] The provision that an appeal may be taken from a special order made after final judgment has no application to probate proceedings. [Citation.]” (Guardianship of Morro (1940) 36 Cal.App.2d 623, 627; see also 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 203, p. 279.) The general rule allowing appeals from an order denying a statutory motion for relief under Code of Civil Procedure section 473 does not apply in probate, and these orders are not appealable. (See Estate of Wilhelm (1957) 152 Cal.App.2d 803, 805; see also 9 Witkin, supra, § 207, pp. 281-282.) Thus, absent an exception not applicable here, the probate court’s order denying Gibson’s motion is not appealable. We do not, however, ignore Gibson’s arguments; we address his arguments as additional grounds to challenge the order determining the validity of the trust.
Probate Code section 1300, subdivision (k) provides for an appeal “[a]djudicating the merits of a claim made under Part 19 (commencing with Section 850) of Division 2.” Probate Code section 1304, subdivision (a) permits an appeal from any final order commencing with Probate Code section 17200. As noted, Probate Code sections 850 and 17200.1 address the subject matter of the petition.
2. There Are No Grounds to Reverse the Order Voiding the Trust
Gibson contends we should reverse the order voiding the trust for the following reasons: (1) there is insufficient evidence to void the trust based upon lack of mental capacity and undue influence; (2) the probate court exceeded its jurisdiction by invalidating the trust for lack of funding because this relief was improperly raised in the supplement to the petition; (3) there is a statute of limitations defense that has not been previously asserted; and (4) the order violated his right to due process. We reject these contentions based upon the record and Gibson’s forfeiture.
As noted, Gibson did not file objections to the petition, but the purchaser of the Adrian property did. During the hearing, the probate court considered the objector’s arguments (which Gibson’s new counsel represented Gibson had intended to join), along with the evidence (in the form of the verified petitions), before reaching its conclusion to void the trust. We presume the order is correct, and Gibson bears the burden of overcoming this presumption. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Gibson has not carried this burden.
a. Sufficient Evidence Establishes Lack of Mental Capacity
When a ruling is challenged on appeal for lack of sufficient evidence, our review is limited. We determine whether there is any substantial evidence, contradicted or uncontradicted, to support the probate court’s findings. (See Estate of Young (2008) 160 Cal.App.4th 62, 75-76.) We must view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. (Id. at p. 76.) We reject Gibson’s contention that he is entitled to a de novo review because the evidence presented was undisputed. This not only misrepresents the record, but also would give him the proverbial “second bite of the apple, ” in the appellate court.
Gibson next contends there is insufficient evidence to show lack of mental capacity. Gibson faults the probate court for not explicitly rejecting the allegations in the verified petition because the court previously sustained objections to this evidence in denying petitioners’ summary judgment motion. These objections were not presented at the hearing on the petition and did not “carry over” from the summary judgment proceeding to the hearing on the petition, or to this appeal. (See In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117 [“It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal. A party who fails to raise an issue in the trial court has therefore waived the right to do so on appeal.”].) We do not reweigh the conflicting evidence and presume the trial court considered admissible evidence.
Petitioners moved for summary judgment on the ground that no trust was created because the Adrian property was not transferred into the trust. The trial court denied the motion because the petitioners did not establish their defense as a matter of law. The purchaser objected to irrelevant evidence related to the decedent’s mental capacity and Gibson’s undue influence.
Substantial evidence and reasonable inferences establish the decedent lacked mental capacity. Capacity to transfer property is generally the same as the capacity to execute a will. (See Tuttle v. Bessey (1955) 137 Cal.App.2d 725, 727.) The decedent did not understand the nature of her actions in executing the trust, as the record indicates she never informed the petitioners in any manner (or had Gibson inform the petitioners) that she created the trust, which purportedly transferred the Adrian property, revoked her will, and disinherited her children. (Prob. Code, §§ 811, subd. (a)(1)(B); 6100.5(a)(1).) The decedent also suffered from depression and alcoholism for 30 years, was estranged and isolated from her family, had previously attempted suicide, and ultimately committed suicide. (Prob. Code, §§ 811, subds. (a)(4), (b), (c); 6100.5, subd. (a)(1).) The trust was executed in September 2002, just four months before the decedent committed suicide. This evidence is sufficient to support a reasonable inference that at the time the decedent executed the trust she lacked mental capacity.
Gibson contends there is contradictory evidence in the decedent’s attorney’s declaration, stating the decedent “was of sound mind, and under no constraint or undue influence.” This evidence is not conclusive. (Estate of Goetz (1967) 253 Cal.App.2d 107, 114.) Notably absent from this declaration is any statement that the decedent gave instructions to her attorney in the preparation of the trust, which disinherited her children. The probate court weighed the decedent’s attorney’s declaration and reached the opposite conclusion. We cannot reweigh this evidence, as we find sufficient evidence to support the probate court’s determination.
b. Sufficient Evidence Establishes Undue Influence
Substantial evidence and reasonable inferences establish the decedent was unduly influenced by Gibson to change her estate to the exclusion of her children. A presumption of undue influence arises with: (1) the existence of a confidential or fiduciary relationship between the settlor and the person alleged to have exerted undue influence; (2) active participation by such person in the preparation or execution of the trust; and (3) an undue benefit under the trust. (See Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 181-182, superseded by statute on other grounds as stated in Rice v. Clark (2002) 28 Cal.4th 89, 96-98.) The first and third factors are established based upon the verified petition. Gibson had a confidential relationship with the decedent arising from his family connection and status as a minister. Gibson also unduly profited under the terms of the trust itself; Gibson would have taken nothing under the terms of the decedent’s will.
As for the second factor, the reasonable inferences from the evidence show activity on the part of Gibson to procure the execution of the trust. (Hagen v. Hickenbottom, supra, 41 Cal.App.4th at pp. 181-182.) Gibson was the only family member to have contact with decedent before her death, and he made no attempt to inform the decedent’s children that their mother had executed the trust until three years after he sold the Adrian property. Gibson isolated the decedent who depended upon him. The decedent signed the trust document without any witnesses only four months before her death, which named Gibson as the successor trustee, and invalidated a will that she created some 14 years earlier, naming her daughter as her sole beneficiary. The trust, naming Gibson as the sole beneficiary, appears to be contrary to the decedent’s prior expression of intent and is without explanation in the absence of Gibson’s influence on the decedent.
Gibson contends that the explanation for his designation as successor trustee and sole beneficiary is a simple one, that is, the petitioners were estranged from the decedent. While Gibson’s letter states the decedent intended to disinherit her children, we cannot credit this evidence or reweigh this evidence on appeal. There is sufficient evidence from which the probate court could conclude that petitioners established undue influence. Under the circumstances in this case, we find no basis to reverse.
Based upon this conclusion, we need not discuss in detail Gibson’s contentions that the probate court’s order determining the trust is void for lack of funding constitutes procedural and substantive error. Upon our review we find no error, but no matter the outcome of these issues, the trust is void as described above.
c. Gibson’s Remaining Challenges Lack Merit
Gibson has forfeited his right to raise the affirmative defense that the petition is barred by the statute of limitations. An affirmative defense must be pleaded and proven in the trial court and cannot be raised for the first time on appeal. (Union Sugar Co. v. Hollister Estate Co. (1935) 3 Cal.2d 740, 745; Zubarau v. City of Palmdale (2011) 192 Cal.App.4th 289, 306.)
We also reject Gibson’s contention that he was denied due process at the petition hearing. This is the essence of Gibson’s motion to under Code of Civil Procedure section 473. Gibson was served with the petition and the supplement to the petition. He was given notice of the hearing, and he took no steps to protect his interests after filing the substitution of counsel. Gibson was not prejudiced because his former counsel’s license was inactive during her representation or because his former counsel did not file or join the purchaser’s objections to the petition. The probate court considered and rejected the purchaser’s objections in ruling on the petition. Moreover, Gibson had ample time to file objections to the petition before the April 5, 2010 hearing.
In sum, there are no grounds stated in this appeal to disturb the probate court’s determination that the trust is void.
DISPOSITION
The order voiding the Teace Jane Schlorff Family Trust is affirmed. We dismiss the purported appeal from the order denying the motion under Code of Civil Procedure section 473, subdivision (b) on the grounds that it is taken from an order not appealable in probate proceedings. No costs are awarded on appeal.
We concur: CROSKEY, Acting P. J.KITCHING, J.