Estate of Ermalinda Avila

Case Number

24PR00264

Case Type

Hearing Date / Time

Wed, 12/04/2024 - 08:30

Nature of Proceedings

Competing Petitions for Appointment as Personal Representative

Tentative Ruling

Probate Notes:

Evidentiary Hearing Required.  On April 29, 2024, Evelyn Catherine Avilla Lee filed a Petition for Probate and Letters Testamentary.  That petition received written objection by Jeffrey Avila Vargas on July 8, 2024, a competing petition for appointment as personal representative on July 18, 2024, and a properly served objection with summons on all but two persons entitled to notice, creating a contest over admission of the will to probate, and appointment of a personal representative, which requires Evidentiary Hearing to resolve. (In re Estate of Lensch (2009) 177 Cal.App.4th 667, 676; Conservatorship of Farrant (2021) 67 Cal.App.5th 370, 377.)

On October 4, 2024, Mr. Vargas filed an amended Will Contest.  The attached Proof of Service to that amended Will Contest does not show personal service on all heirs, which is required by Probate Code section 8250(a). There does not appear to be a Proof of Personal Service to anyone entitled to service on file.

Any service defect of the amended Will Contest can be cured by personal appearance of “each heir of the decedent” (Prob. Code, §8110(a)) and “[e]ach devisee, executor, and alternative executor named in any will being offered for probate” (Prob. Code, §8110(b)).

Ruling needed on Improper “Reply” re: Vargas Will Contest.  At both hearings on this matter, the Court has addressed a document filed on August 16, 2024, by Evelyn Avila Lee (“Ms. Lee”) with the following title (emphasis added):

VERIFIED REPLY IN SUPPORT OF

PETITION FOR APPOINTMENT OF

EVELYN CATHERINE AVILA LEE AS

ADMINISTRATOR WITH THE WILL

ANNEXED OF THE ESTATE OF

ERMALINDA AVILA, DECEASED

Not only did the title of the pleading identify that it was filed in support of Petitioner’s own initial pleading, but the very first statement made in that filing after the introduction of the filing party not only reaffirmed it was a reply to the initial pleading, but a footnote cited to filing date of the initial pleading:

(1) Reply in Support of her Petition for Appointment as Administrator With Will Annexed of the Estate of Ermalinda Avila, deceased, (“Lee Petition”)

(Reply, p. 2, lns. 4-5 [emphasis added].)

The first notes posted addressing the problems with that document 1) pointed out that the “Reply” was an improper response to the will contest filed by Mr. Vargas on July 8, 2024, 2) pointed out that a “Response” is the proper title for a Probate Code section 1043 document, and 3) cited to authority showing the proper responsive document to a will contest is a pleading identified by the Probate Code as an answer to the will contest, or a demurrer, and that pleading must be filed within 30 days after service of the summons.  (Prob. Code, § 8250, subd(a) and 8251, subd. (a).)  The notes recommended the Court strike the “Reply” as not being filed in conformity with the law, because it caused confusion to the pleadings that was unnecessary, unwarranted, and did not properly place the will contest at issue on a procedural level.

At the hearing on August 28, 2024, Ms. Bowker (offering argument that had not been briefed in writing to the court, thus had not been verified by her client which is why the notes referred to the argument as Ms. Bowker’s own) represented to the Court that 1) the Reply was not filed in response to the will contest; and 2) Probate Code section 1020 justified the filing of the “Reply.”  The Court continued the matter to September 11, 2024, for further review.  The notes posted for that hearing went into extensive detail showing not only why the “Reply” was erroneously labeled (i.e. it should have been labeled a “Response” per the Code), but also why a properly labeled “Response” was not a procedurally appropriate responsive filing to a will contest.  When Ms. Bowker attempted to address those notes at the September 11^th hearing, the Court ordered further briefing on the issue, and further briefing was filed on October 16, 2024.

In Petitioner’s further briefing on this issue, Petitioner made the following arguments, that are addressed in these notes in turn:

Argument #1: Ms. Lee has not made an appearance on the will contest. (Petnr.’s Brief, p.4, ln.10.)

Petitioner’s argument on this issue shows a fundamental lack of understanding about the jurisdiction of the Probate Court.  Probate Court jurisdiction in decedent’s estate matters is in rem.  “An action or proceeding in rem is one that seeks to affect the interests of all persons (“all the world”) in certain property (“a thing”). (Rest.2d, Judgments § 6, Comment a; see discussion and definitions in Title & Document Restoration Co. v. Kerrigan (1906) 150 Cal. 289, 306, 307, 315.) “The probate court's in rem jurisdiction over a decedent's assets does not exist in the absence of a probate estate.” (David v. Hermann (2005) 129 Cal.App.4th 672, 682.)  Therefore, personal jurisdiction over all matters related to whatever property comes to be identified as decedent’s estate attached as soon as Petitioner filed the Petition for Probate:

The jurisdiction of the probate court is a jurisdiction in rem, the res being the estate of the decedent which is to be administered and distributed with regard to the rights of creditors, devisees, legatees, and all the world. [Citations.] By giving the notice prescribed by the statute, the entire world is called before the court, and the court acquires jurisdiction over all persons for the purpose of determining their rights to any portion of the estate, and every person who may assert any right or interest therein is required to present his claim to the court for its determination. Whether he appears and presents his claim, or fails to appear, the action of the court is equally conclusive upon him, “subject only to be[ing] reversed, set aside, or modified on appeal.” The decree is as binding upon him if he fails to appear and present his claim, as if his claim, after presentation, had been disallowed by the court.” [Citation.]

(Abels v. Frey (1932) 126 Cal. App. 48, 53–54 [emphasis added].)

Therefore, Petitioner has “appeared” in this case, at least so far as Petitioner’s rights to any property within the Decedent’s Estate.  Whether Petitioner has been properly notified of an objection to her rights in the estate (i.e. Mr. Vargas’ opposition to the will) has nothing to do with appearances or jurisdiction.  Thus, the Court should dismiss this argument out of hand.

Argument #2: The Probate Code sections cited in the probate notes do not prohibit a party from filing a response to their own initial pleading, and they do not prohibit a party from responding in writing to an objection to a petition. (Petnr.’s Brief, p.6, lns. 4-6.)

This argument falls flat.  As plainly spelled out in the previous notes, the Probate Code governs the procedural vehicles authorized in Probate Court proceedings.  As stated in previous notes, Probate Code section 1020 identifies only five (5) such procedural vehicles: “a petition, objection, response, report, or account.”   The only other procedural vehicle allowed in Probate Court is a motion, and that is only allowed via operation of Probate Code section 1000. (See CCP, §§1003, 1064.)

The previous notes pointed out that the “response” allowed by section 1020 was only appropriate to an initial pleading, because of the language in Probate Code sections 1021, 1041, and 1043:

When a petition, report, account, or other matter that requires a hearing is filed with the court clerk, the clerk shall set the matter for hearing.

(Prob. Code, §1041.)

(a) An interested person may appear and make a response or objection in writing at or before the hearing.

(b) An interested person may appear and make a response or objection orally at the hearing. The 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.

(c) A request for a continuance for the purpose of making a written response or objection shall not itself be considered as a response or objection, nor shall the failure to make a response or objection during the time allowed be considered as a response or objection.

(Prob. Code, §1043 [emphasis added].)

(a) All of the following shall be verified:

(1) A petition, report, or account filed pursuant to this code.

(2) An objection or response filed pursuant to this code to a petition, report, or account.

(Prob. Code, § 1021 [emphasis added].)

In rebuttal to this argument, Petitioner not only fails to cite any code sections or caselaw affirmatively authorizing such a filing, but glaringly offers what can only be properly described as two logical fallacies in support.  First, the appeal to ignorance fallacy claiming that because the code does not expressly forbid something, it must surely be allowed.  And second, the appeal to pity fallacy that if the filing is not allowed, Plaintiff will magically lose her right to make challenges on appeal that were contained within the pleading filed with the trial court.

To be clear, the previous notes only recommended striking the erroneous pleading.  The previous notes did not recommend denial of any further filings containing the previously attempted challenges in a proper procedural vehicle.  In fact, the previous notes even outlined the code section showing Petitioner what those proper procedural vehicles were.

Thus, the Court should find these arguments unpersuasive and strike the improper “Reply.”

Argument #3: Even if the “Reply” was prohibited to a party’s own pleading, Petitioner’s Reply is in response to Mr. Vargas’s objection, which is supported by the probate note’s position that a response is only permitted to an initial pleading. (Petnr.’s Brief, p.6, lns. 6-9.)

This argument is factually incorrect, thus another attempt to mislead the Court. While it is true that a hefty portion of the argument section in the “Reply” is dedicated to defeating any objection to the appointment of Ms. Lee as personal representative of this estate, that argument focuses almost entirely on the effect of the will, and even takes the position that an objection to Ms. Lee’s appointment was not actually made. (Reply, at subd. C “Vargas Objection Does Not Raise an Objection to Petitioner Lee’s Appointment”.)

In fact, the disingenuousness of Petitioner’s argument claiming that the “Reply” is no more than a response to an objection to the appointment of a personal representative is no more glaringly evident than at paragraph 4, of subdivision C of the “Reply” where Petitioner argues that her position is that the objection is actually a will contest: “The Vargas Objection is not an objection to Petitioner Lee’s appointment, and is in fact, a will contest that is not yet at issue.”

Even if the Court was persuaded by such an argument (despite the guile it contained), the Court should not overlook the fact that any opposition in the “Reply” that Ms. Lee may be putting forward to the objection to her appointment, is so intertwined with the will contest that it could only be separated by an elite few surgeons skillful enough to separate Siamese twins without causing at least one’s death.

In this case, a funeral of both should be expected, because this court should not attempt such a surgical feat, but should strike the “Reply” in toto.

Argument #4: Assuming the probate note’s interpretation of Probate Code sections 1020, 1041, and 1043 is correct, it would suggest that a party does not have the right to respond to an opposing party’s objections in writing, forcing an involuntary waiver of a party’s right to challenge an objection and preserve the record in the event of an appeal. (Petnr.’s Brief, p.6, lns.11-14.)

Again to be clear and final, the previous notes only recommended striking the erroneous pleading.  The previous notes did not recommend denial of any further filings containing the previously attempted challenges in a proper procedural vehicle.  In fact, the previous notes even outlined the code section showing Petitioner what those proper procedural vehicles were.

Thus, the Court should find these arguments unpersuasive and strike the improper “Reply.”

Appearances:

The court is open to the public for court business. The court is also conducting hearings via Zoom videoconference.

Meeting ID: 161 956 1423

Passcode: 137305