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Oseguera v. McNeely

Dec 29, 2016
D068783 (Cal. Ct. App. Dec. 29, 2016)




BENJAMIN P. OSEGUERA, as Co-Trustee, etc., et al., Plaintiffs and Respondents, v. WILLIAM L. McNEELY, III, Defendant and Appellant.

Rosner, Barry & Babbitt and Shay Dinata-Hanson for Defendant and Appellant. Beberman, Stoffel & Beberman and James Jay Stoffel for Plaintiffs and Respondents.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2015-00015977-PR-TR-CTL) APPEAL from an order of the Superior Court of San Diego County, Thomas A. Henry, Temporary Judge. Reversed and remanded with instructions. Rosner, Barry & Babbitt and Shay Dinata-Hanson for Defendant and Appellant. Beberman, Stoffel & Beberman and James Jay Stoffel for Plaintiffs and Respondents.

William L. McNeely, III, appeals from the probate court's order granting a petition (Petition) filed by Benjamin P. Oseguera, Rosa Oseguera Lopez and David Oseguera (together, the Trustees), in their capacity as successor co-trustees of The Oseguera Family Trust, dated April 10, 1992 (the Trust). The court's July 8, 2015 order (Order) terminated McNeely's life estate interest in certain real property owned by the Trust; authorized the eviction of any tenants at the real property; and directed the sale of the real property, the payment of certain expenses, the termination of the Trust and the distribution of the remaining assets according to the terms of the Trust.

Among other arguments, McNeely contends that the probate court erred in granting the Petition without holding an evidentiary hearing. We agree with McNeely and reverse the Order and remand the matter with instructions to proceed with the Petition as a contested matter requiring an evidentiary hearing.



The record on appeal consists of a clerk's transcript and a settled statement. (Cal. Rules of Court, rules 8.122, 8.137.) The clerk's transcript contains the Trustees' Petition (verified by the Trustees), a supplement to the Petition, the Order, a notice of entry of the Order, and McNeely's notice of appeal and designation of record on appeal. The settled statement contains a statement of the oral proceedings on July 8, 2015, on which the Order is based. We have not considered factual statements in the parties' briefs that do not contain accurate record references. (See rule 8.204(a)(1)(C).)

On April 10, 1992, Jesus and Braulia Oseguera created the Trust. One of the assets they transferred to the Trust is the real property, including a habitable residence, on Curran Street in La Canada, California (the Property).

The documents before the court are not consistent. Some identify the address of the Property as 1411 Curran Street with two structures, while others identify the address of the Property to include 1411 and 1413 Curran Street. This inconsistency does not affect our consideration of the issues in, or the disposition of, the appeal.

As relevant here, the Trust provides that the Property shall not be distributed "outright" to the remaining "primary beneficiaries" as long as any primary beneficiary "elects to use the house, located [on the Property], as his or her primary residence." McNeely is one of nine designated "primary beneficiaries." Jesus and Braulia Oseguera were McNeely's grandparents and legal guardians. Braulia outlived Jesus, and McNeely has used the Property as his primary residence both before and after Braulia's death in 2000.

Of the nine named primary beneficiaries, five were living when the Trustees commenced this action.

In May 2015, the Trustees filed the Petition, seeking either (1) an order to sell the Property and to terminate the Trust or, in the alternative, (2) instructions as to the right of the primary beneficiaries to continue using the Property as their primary residence and the corresponding obligation, if any, of a primary beneficiary (like McNeely) who resides at the Property for the payment of real property taxes, insurance premiums and maintenance expenses. In the verified Petition, the Trustees allege in relevant part the following facts: McNeely will not allow other primary beneficiaries to live at the Property; the taxes and insurance premiums from 2000 through 2013 (and at least one minor repair) for the Property have been paid by loans to the Trust from certain of the primary beneficiaries; and the taxes after 2013 have not been paid. Correspondingly, based on these facts, the Trustees contend in the Petition that any of the primary beneficiaries, not just McNeely, is entitled to reside at the Property; any of the primary beneficiaries residing at the Property under a claimed life estate interest, including specifically McNeely, is "required by [Civil Code section 840] to pay the Los Angeles County Real Property taxes, insurance premiums and expenses to maintain and repair the . . . Property"; and if any of the primary beneficiaries residing at the Property under a claimed life estate interest, including specifically McNeely, is unable or unwilling to pay these taxes, insurance premiums and expenses for maintenance and repairs, the Property "should be sold and the proceeds from the sale distributed according to the terms of the Trust, after all loans, debts, and administrative expenses have been paid."

On July 8, 2015, the probate court held a hearing on the Petition. Trustees' counsel appeared for the petitioner-Trustees, and McNeely appeared on his own behalf as an objector. Before McNeely was able to state anything, the hearing began with the judge "reciting the allegations set forth in the Petition and stating his interpretations and conclusions regarding each of the allegations." More specifically, based on the recitation of the allegations, the court identified one of the other primary beneficiaries, stating that he "had the right to live with Mr. McNeely" at the Property; opined that "Mr. McNeely alone was responsible for the payment of all property taxes, insurance premiums and costs of maintenance" during the 2000-2013 time period — in the amount of $29,121.61; and added that if McNeely was "unable or unwilling" to make this payment, then "the property in the Trust should be sold and the proceeds distributed according to the terms of the Trust."

Because the procedural rules apply to self-represented parties the same as to counsel, McNeely was not entitled to any special or lenient treatment based on what he did or did not do while representing himself. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)

At this point, McNeely explained that he did not have an attorney and that he needed the court's help and guidance. In somewhat of a non sequitur, the court replied that McNeely "had been given more than enough time to prepare" and told Trustees' counsel to proceed on the Petition.

The record on appeal does not contain a proof of service showing when McNeely received notice of the hearing, but we note that the hearing was less than two months after the filing of the Petition with no indication of any continuances.

In response, the Trustees did not present any evidence. Instead, Trustees' counsel presented an oral argument in which he agreed with — and repeated — the Judge's tentative conclusions as to each of the allegations recited by the court.

After Trustees' counsel completed his argument, when McNeely was given his turn to speak, McNeely orally "objected to all of the false allegations being made against him" both in the Petition and by Trustees' counsel at the hearing. (Italics added.) The record discloses expressly that "[t]he Judge did not ask Mr. McNeely about his objections," even though McNeely explained that he had "proper documentation to contradict the numerous false allegations."

In response to the court's later question why he had not paid the current property taxes and insurance premiums and why he had not maintained the Property, McNeely assured the court both that he had always paid at least his share of such taxes and premiums during the 2000-2013 time period and that he had maintained and improved the Property.

At the end of his remarks, McNeely also raised a legal challenge to the Petition. He told the court that he had "recently found out that there was a last Will," that he owns the Property and that "the [T]rustees knew of this and were not saying anything." Neither Trustees' counsel nor the court responded to this objection, and the court did not mention this objection when it ruled.

The court then issued the following oral ruling from the bench: McNeely's life estate in the Property was terminated; the Property was to be sold; the Trustees were authorized to evict any occupants from the Property; the Trustees were to pay all loans, debts and expenses of the Trust and distribute the remaining funds according to the terms of the Trust; and the Trust was to be terminated. The court's July 8, 2015 minutes, which became the Order we are reviewing, granted the Petition and contained most of the court's oral rulings.

The court orally ruled, but the Order does not reflect, that McNeely's life estate in the Property was terminated. This inconsistency does not affect any issue on appeal.

McNeely timely appealed from the Order.



We presume the Order is correct, and McNeely (as the appellant) has the burden of affirmatively demonstrating reversible error. (Estate of Bonzi (2013) 216 Cal.App.4th 1085, 1101 [appeal from probate court ruling on petition to confirm sale].) McNeely presents at least five distinct arguments on appeal. Because we conclude that the court erred by not proceeding with an evidentiary hearing in light of McNeely's objections, we do not reach the other arguments McNeely raises in his appeal.

The Trustees filed a verified petition for relief from the probate court. In answer to such a petition, "[a]n interested person may appear and make a response or objection orally at the hearing." (Prob. Code, § 1043, subd. (b); further undesignated statutory references are to the Probate Code.) In such event, "[t]he court in its discretion shall either hear and determine the response or objection at the hearing, or grant a continuance for the purpose of allowing a response or objection to be made in writing." (Ibid.)

Here, McNeely appeared at the hearing, which (as we described in greater detail ante) proceeded as follows: opening remarks and substantive comments on the Petition from the court; McNeely's explanation that he did not have an attorney and needed help and guidance; the court's statement that McNeely had been given enough time to prepare; Trustees' counsel's argument agreeing with the court's conclusions in its opening comments; McNeely's objection to the allegations and offer of proof; the court's questions to and responses from McNeely, which included McNeely's statements that both directly contradicted and set forth a legal challenge to the allegations in the Petition; and the court's oral ruling.

Evidence Code section 300 "makes the Evidence Code applicable to all proceedings conducted by California courts except those court proceedings to which it is made inapplicable by statute." (Cal. Law Revision Com. com., 29B Pt. 1A West's Ann. Evid. Code (2011 ed.) foll. § 300, p. 100, italics added.) Consistently, section 1000 provides: "Except to the extent that [the Probate 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." (Italics added.) In fact, the Probate Code provides applicable rules affecting the type of sworn testimony that may be considered in probate proceedings.

"Except as otherwise provided by statute, this code applies in every action before the Supreme Court or a court of appeal or superior court . . . ." (Evid. Code, § 300, italics added.)

Section 1022 provides in full, "An affidavit or verified petition shall be received as evidence when offered in an uncontested proceeding under [the Probate Code]." (Italics added.) Notably, the Probate Code does not "authoriz[e] the substitution of affidavits for oral evidence in a contested probate proceeding." (Estate of Fraysher (1956) 47 Cal.2d 131, 135 (Fraysher), italics added.) "Thus when challenged in a lower court, affidavits and verified petitions may not be considered as evidence at a contested probate hearing." (Evangelho v. Presoto (1998) 67 Cal.App.4th 615, 620 (Evangelho), italics added.) We find guidance in certain cases that have applied these concepts.

In In re Estate of Bennett (2008) 163 Cal.App.4th 1303 (Bennett), certain family members of the decedent filed a motion to set aside a settlement agreement, and certain claimants that had entered into the settlement agreement with the decedent opposed the motion. (Id. at pp. 1305, 1307.) Although both sides submitted declarations supporting their positions, the claimants argued that the factual issues required a "trial or evidentiary hearing on the merits." (Id. at p. 1307.) The trial court took the matter under submission without hearing oral testimony, ultimately ruling in favor of the family members. (Id. at p. 1308.) Based in significant part on Fraysher, supra, 47 Cal.2d at page 135, and Evangelho, supra, 67 Cal.App.4th at page 620, the Court of Appeal held this was reversible error. (Bennett, at pp. 1309-1310.)

In re Estate of Lensch (2009) 177 Cal.App.4th 667 (Lensch) involved a will in which the decedent's mother left half of her estate to the decedent, Lensch. (Id. at p. 672.) When Lensch's body was found very shortly after his mother died, Lensch's children filed a verified petition to determine the order of death. (Id. at pp. 671-672.) After the probate court announced its tentative decision to rule against the children, the children orally requested an evidentiary hearing. (Id. at p. 672.) The court found that based on the death certificates Lensch had survived his mother, ruling that a further evidentiary hearing was not required. (Id. at pp. 672-673.) Noting that the children's opposition transformed the petition into a contested matter, the Court of Appeal rejected the argument that the children waived the issue by failing to raise it before the hearing: "Once a petition is contested, as this one was, the court erred in refusing to permit [Lensch's children] to proceed to an evidentiary hearing on the question of whether [Lensch] survived [his mother]." (Id. at pp. 677-678 [relying on § 1022].)

We recognize that the restriction on the use of affidavits in contested probate hearings is inapplicable when "the parties [do] not object to the use of affidavits in evidence and both parties adopt[] that means of supporting their positions." (Fraysher, supra, 47 Cal.2d at p. 135, italics added; accord, Evangelho, supra, 67 Cal.App.4th at p. 620.) Here, although McNeely objected to the allegations in the Petition, he did not support his position by use of affidavits; thus, the above-described exception to the restriction of the use of affidavits does not apply.

In this opinion, "affidavit" includes certification or declaration under penalty of perjury. (See Code Civ. Proc., § 2015.5.)

We also recognize that, unlike the objector in Bennett, supra, 163 Cal.App.4th at page 1307, here McNeely did not request in writing that the matter proceed by way of trial or evidentiary hearing. While a written objection prior to the hearing may be a preferred procedure (in order for the probate court and all parties to be prepared), the statutory scheme does not require it. To the contrary, section 1043, subdivision (b) expressly allows an interested person to first assert his objection to a petition at a hearing—just as McNeely did here.

Under such circumstances, section 1043, subdivision (b) then gives the court the discretion either to continue the hearing or to hear and determine the objection at the hearing. Regardless when the hearing takes place, however, if it is contested, then the court may not rely on affidavits or verified pleadings; the admission of evidence under the Evidence Code is required. (See § 1022; Fraysher, supra, 47 Cal.2d at p. 135; Evangelho, supra, 67 Cal.App.4th at p. 620.)

The Trustees' only response is that, based on certain "admissions of fact" by McNeely, the proceeding was uncontested. We disagree. First, our review of the record discloses that McNeely did not admit any facts. There is no indication that McNeely's statements to the court were evidence or testimony; to the contrary, neither the settled statement nor the court's minutes indicate that any witness was sworn or that any evidence was received by the court. Second, even assuming McNeely's statements were presented by way of sworn testimony, what McNeely said does not support the Trustees' principal contention — namely, that the Trustees were entitled to the relief they requested because McNeely did not have the funds to pay the real property taxes or insurance premiums. The Trustees rely on McNeely's response to the court that he did not have a lawyer "because he did not have the money to pay for one." The Trustees argue that, based on McNeely's statement, the probate court properly concluded that McNeely could not pay either the delinquent taxes and insurance or those expenses in the future. Even if McNeely's statement regarding his inability to pay for an attorney were evidence (and it is not), the statement does not support a finding that McNeely is unable to pay either the real property taxes or insurance premiums for the Property. Without knowing how much money the attorney(s) may have requested from McNeely, there is no basis on which to find (or even infer) that McNeely cannot not pay the $29,121.61 that the Trustees allege is owed.

Unsworn statements presented at hearings, of course, are not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11.)

For purposes of this argument, we will assume without deciding that the Trustees' legal position is tenable and, accordingly, that Civil Code section 840 requires McNeely to be responsible for past and future real property taxes and insurance premiums for the Property.

In conclusion, based on McNeely's statements once he was given his opportunity to respond to Trustees' counsel's argument, the hearing was no longer uncontested. The court therefore erred in not proceeding by way of an evidentiary hearing. (Fraysher, supra, 47 Cal.2d at p. 135; Evangelho, supra, 67 Cal.App.4th at p. 620; Lensch, supra, 177 Cal.App.4th at pp. 677-679; Bennett, supra, 163 Cal.App.4th at pp. 1309-1310.)

We express no opinion on the numerous other issues and arguments presented by both McNeely and the Trustees. --------


The Order is reversed and the matter is remanded to the probate court with instructions to proceed with the Petition as a contested matter requiring an evidentiary hearing. McNeely is awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(4).)


Summaries of

Oseguera v. McNeely

Dec 29, 2016
D068783 (Cal. Ct. App. Dec. 29, 2016)
Case details for

Oseguera v. McNeely

Case Details

Full title:BENJAMIN P. OSEGUERA, as Co-Trustee, etc., et al., Plaintiffs and…


Date published: Dec 29, 2016


D068783 (Cal. Ct. App. Dec. 29, 2016)