In re Estate of Austin, B196838 (Cal. App. 4/28/2008)
| Decision Date | 28 April 2008 |
| Docket Number | B196838 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Estate of ANNIE MAE AUSTIN, Deceased. RANDY TAYLOR, Petitioner and Respondent, v. GERALDINE CARR, Objector and Appellant. |
Appeal from an order of the Superior Court of Los Angeles County, No. P729335, Michael I. Levanas, Judge. Affirmed.
Ian Noel for Objector and Appellant.
Sullivan, Workman & Dee and Sherrill Y. Tanibata for Petitioner and Respondent.
Geraldine Carr appeals after the probate court ruled against her will contest and ordered a lost will admitted to probate.1 Geraldine also appeals from orders regarding the taking of her deposition and directing her attorney of record, Ian Noel, to pay $3,936 in monetary sanctions. We affirm the order admitting the lost will to probate. We also affirm the deposition and sanctions orders in all respects.
A. The Petition To Admit The Lost Will
On July 20, 2005, Randy Taylor filed a petition for admission to probate the 1980 lost will of his deceased grandmother, Annie Mae Austin. Randy also sought the appointment of Beverly Nyoka Williams and Anthony Austin, to act as co-administrators of the will. Beverly and Anthony are Randy's cousins. The petition alleged that Annie Mae, who died on November 24, 1984, was married to Leon Austin who predeceased her. Annie Mae and Leon had nine children (Ester Austin, Geraldine, Margaret Taylor, Charles Lee Austin, Herndon Austin, Delbert Austin, Greek Austin, Alameda Smith, and Augusta Williams). Charles and Geraldine are the only two surviving children. Alameda predeceased Annie Mae. Herndon, Delbert, and Greek died after the death of their mother, Annie Mae. Ester, Margaret, and Augusta died while this petition was pending. With the exception of Ester, each of the deceased children themselves were parents. Ester is survived by his wife, Anna Austin. Randy is Margaret's son.
Attached to Randy's petition was a document entitled "LAST WILL AND TESTAMENT OF ANNIE MAE AUSTIN." The will indicated that it had been prepared by Arthur Levitas, an attorney. The will, dated March 21, 1980, contained a typewritten signature for Annie Mae and three witnesses, Mr. Levitas, Virginia B. McClure, and Vicki L. Marshall. On the signature line, preceding the typewritten signature are the characters "/s/." Above the witnesses' signatures is the following attestation: "The foregoing instrument consisting of seven (7) typewritten pages, this page included, was on the date last above written, signed, sealed, published and declared by ANNIE MAE AUSTIN to be her Last Will and Testament, in the presence of us, who at her request, in her presence, and in the presence of each other, have subscribed our names as witnesses thereto."
On July 20, 2005, Randy filed the declaration of Virgina B. McClure-Greenspun who declared she was formerly known as Virginia B. McClure. In the year 1980, she was employed by the Law Offices of David Blonder, which shared office space with Mr. Levitas. Mr. Levitas would sometimes ask her to witness wills that he prepared for his clients. It was Mr. Levitas' custom and practice, after executing and witnessing a will, to give the client a conformed copy of the will on which the names of the testator and witnesses were typed, preceded with "/s/." This notation indicated the original had been signed by the individual whose name appeared after the "/s/." Ms. McClure-Greenspun indicated that Annie Mae's will was an example of such a will.
Also on July 20, 2005, Randy filed proof of subscribing witness executed by Mr. Levitas and Ms. McClure. They declared: the document lodged with the probate court was a photographic copy of Annie Mae's will; Annie Mae personally signed her name in the presence of the witnesses; Annie Mae acknowledged in the presence of the attesting witnesses that her signature was on the instrument; Annie Mae acknowledged in the presence of the attesting witnesses that the instrument signed was her will; and when they signed the document, they understood that it was Annie Mae's will.
On September 30, 2005, Geraldine filed a petition to determine whether objecting to the petition would violate a no contest clause in the 1981 lost will. On November 4, 2005, the parties filed a stipulation that Geraldine could file the objections and Randy would waive any right to assert that the no contest provision had been violated. On December 16, 2005, Geraldine filed her objections to the petition to probate Anne Mae's will. The objections alleged that probate of the will should be denied because: a prior petition to probate the lost will of Annie Mae was filed on October 13, 1988, under the same case number; the probate court denied the prior petition; and any prior decision is entitled to res judicata effect. It was further alleged and argued: Annie Mae had previously revoked any and all wills and had distributed her property to her children as she saw fit; the purported will was last in Annie Mae's possession; there is a presumption that any will was revoked by her; Randy had the burden to overcome the presumption; and Randy would be unable to overcome the presumption given that Annie Mae distributed her property by non-testamentary means prior to her death.
C. The Deposition And Sanctions Orders
Trial of the admission of the will to probate petition was set for April 17, 2006. The discovery cutoff date was March 20, 2006. Prior to trial, the probate court granted a motion to compel Geraldine to appear for her deposition on April 7, 2006. The order was issued under the following circumstances.
On March 7, 2006, Randy filed a motion to compel Geraldine to attend her deposition. In support of the motion, Randy's attorney, Sherrill Tanibata, declared that a notice of deposition was served on Geraldine on March 3, 2006, for a March 15, 2006 deposition. Mr. Noel called Ms. Tanibata on March 8, 2006. Mr. Noel stated that he and Geraldine were unavailable on March 15, 2006. However, Mr. Noel indicated that his calendar was clear on March 21, 2006. Ms. Tanibata noted that March 21, 2006, was beyond the March 20, 2006 discovery cutoff date. Ms. Tanibata asked Mr. Noel to waive the cutoff date and to stipulate to an order shortening time for a motion to compel prior to trial if necessary. When Ms. Tanibata attempted to confirm the arrangement, she received no response. Ms. Tanibata subsequently noticed Geraldine's deposition for March 21, 2006. Ms. Tanibata sent the notice with a letter requesting waiver of discovery cutoff. On March 9, 2006, Ms. Tanibata received a letter from Mr. Noel stating that he was available on March 9, 2006 to conduct scheduled depositions for third party witnesses. These depositions had been taken off calendar due to a calendar conflict. However, Mr. Noel then stated that he was unavailable for March 21, 2006 even though Ms. Tanibata had been previously informed he was available on that date. Ms. Tanibata subsequently served a notice of deposition for March 21, 2006, and requested a waiver of the discovery cutoff. Mr. Noel stated in a letter that he was unavailable on March 21, 2006.
As a result, on March 9, 2006, Ms. Tanibata notified Mr. Noel she intended to file an ex parte application on March 13, 2006 for an order shortening time for a noticed motion to extend the discovery cutoff date and to compel the taking of Geraldine's deposition. On March 17, 2006, the probate court set the matter for a hearing on March 29, 2006. Geraldine opposed the motion arguing that it was premature because on March 13, 2006, she had not failed to appear at a deposition.
Mr. Noel did not attend the March 29, 2006 hearing to compel Geraldine to attend her deposition. Rather, an attorney named Lonnie Benson appeared at the hearing to extend the discovery cutoff date and to compel Geraldine to submit to a deposition. The probate court indicated that it thought the deposition should go forward and that the parties should meet and confer as to a date. The probate court further indicated that it was extending the discovery cutoff date so Geraldine's deposition could be taken. After Ms. Tanibata and Mr. Benson met and conferred, the probate court asked if they had agreed to a date. Ms. Tanibata advised the probate court that the parties agreed to have the deposition on April 7, 2006. The probate court then granted the motion to compel Geraldine's deposition and ordered it held on April 7, 2006, in Northern California. The probate court also ordered the discovery cutoff date waived solely for the purpose of taking Geraldine's deposition.
On April 4, 2006, Mr. Noel gave Ms. Tanibata notice that he was making an ex-parte application for an order vacating the March 29, 2006 order compelling Geraldine's deposition on April 7, 2006. At the ex parte hearing on April 6, 2006, Mr. Noel argued that the probate court lacked jurisdiction to order Geraldine's deposition be held. The probate court denied the ex-parte application.
On April 11, 2006, Randy filed a motion for an order imposing issue and evidentiary sanctions against Geraldine. Randy's motion also sought the imposition of monetary sanctions against Geraldine and Mr. Noel, for failing to appear at the court ordered April 7, 2006 deposition. In support of the motion, Ms. Tanibata declared that she had attempted to meet and confer with Mr. Noel on April 4, 2006, about the discovery disputes pending between the parties. On April 6, 2006, at the ex parte hearing, Ms. Tanibata attempted several times to confirm that Geraldine's deposition on April 7, 2006, would proceed. The only response she received was that Mr. Noel did not have a ticket. Ms. Tanibata flew to Oakland on April 7, 2006. The 7 a.m. flight that she took on Southwest Airlines was half-empty. Randy sought sanctions in the amount of $6,500 for bad faith and misuse of the discovery process against Geraldine and Mr. Noel pursuant to Code...
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