In re Estate of Carter

• Decision Date: 05 September 2003
• Docket Number: No. G031676.,G031676.
• Citation: 111 Cal.App.4th 1139,4 Cal.Rptr.3d 490
• Court: California Court of Appeals Court of Appeals
• Parties: Estate of Lyndell CARTER, Deceased. Ricky N. Carter, Objector and Appellant, v. Lindella Lashon Regan Carter et al., Real Parties in Interest and Respondents.

4 Cal.Rptr.3d 490

111 Cal.App.4th 1139

Estate of Lyndell CARTER, Deceased.

Ricky N. Carter, Objector and Appellant, v. Lindella Lashon Regan Carter et al., Real Parties in Interest and Respondents.

No. G031676.

Court of Appeal, Fourth District, Division 3.

September 5, 2003.

As Modified on Denial of Rehearing October 3, 2003.

Review Denied December 17, 2003.

Ricky N. Carter, in pro per., for Objector and Appellant.

Roy O. Moss, Jr. for Real Parties in Interest and Respondents.

OPINION

SILLS, P.J.

I. INTRODUCTION

The trial court vacated an order for final distribution of an estate when two women came forward who might be "heirs" (here, the daughters) of the decedent, as "heir" is defined under the laws of intestate succession. The two women had not received notice of the administration of the intestate estate from the petitioner for administration, the brother of the decedent. The two women had been born out of wedlock, and the petitioner for administration had concluded that they did not qualify as heirs, and were therefore not entitled to personal notice under Probate Code section 8110. The statute provides in pertinent part: "At least 15 days before the hearing of a petition for administration of a decedent's estate, the petitioner shall serve notice of the hearing by mail or personal delivery on all of the following persons: [¶] (a) Each heir of the decedent, so far as known or reasonably ascertainable by the petitioner." (Emphasis added.)

As we explain in detail below, though it was a close case, the trial court correctly set aside the final order of distribution. The moving papers supporting the set aside motion contained evidence which showed that the petitioner had knowledge of facts from which a reasonable person could infer that the decedent had both (1) received the two claimants into his home and (2) openly held them out as his natural children. (See Fam.Code, § 7611, subd. (d).) While the Probate Code clearly requires that heirship established on that basis be by clear and convincing evidence (see Prob.Code, § 6453, subd. (b)(2)), that determination must ultimately be made by a court, not a self-interested petitioner for administration who has an incentive to "find" against a potential and rival claimant. (Cf. Tulsa Professional Collection Services, Inc. v. Pope (1988) 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 ("Tulsa Collection").) Any narrower interpretation would offend due process as explicated by the United States Supreme Court in Tulsa Collection. That case constrains courts to give the phrase "reasonably ascertainable," as used in Probate Code section 8110, a broad meaning, sufficient to include individuals (1) whose identities are known to the petitioner and (2) who reasonably might be heirs. Only then can a neutral decision-maker adjudicate the merits of their claim to heirship. Any other rule makes the petitioner for administration a judge in his or her own cause.

II. FACTS

A. Events Leading to the Set Aside Motion

Lindella and Lenitra¹ are the daughters of Carman Regan. Their father is not listed on their birth certificates, and Carman was not married at the time of the conception or birth of either child. The circumstances by which they were led to ultimately bring a motion to set aside the final order of distribution of the estate of Lyndell Carter on the theory that they are his daughters are somewhat unusual. Those circumstances are centered in the fact that there was some confusion as to exactly who had title to the main asset in his estate, a certain house in Anaheim. Here are those circumstances:

In 1983, Lyndell bought the house in Anaheim. Carman and her daughters moved into it. Shortly after the purchase, Lyndell transferred title to his mother, Mildred. According to Lyndell's brother Ricky, the transfer was Lyndell's way of providing for his mother Mildred and simultaneously preventing Carman from ending up with the house. In 1987, Mildred transferred the house to her father and Lyndell's grandfather, Leazer. According to Ricky, Mildred was afraid she would have future "legal problems" and she wanted "to make sure" she wouldn't lose the house.

However, in 1988, unbeknownst to Ricky and Mildred, Leazer gave a deed to the property back to Lyndell. Lyndell died the next year. He never recorded that deed.

Ricky was incarcerated at the time of Lyndell's death in 1989, and his younger brother was about to be incarcerated, so, according to Ricky, Mildred allowed Carman to remain in the house if she would maintain it and pay the taxes. (The degree to which she had Leazer's authority to do this is unclear in this record.)

By 1991 grandfather Leazer was in failing health. Lyndell, to whom he first deeded the property, was now dead, so he deeded the property again, this time back to Mildred. However, Mildred never recorded that deed.

In 1999 Ricky got out of prison and was able to buy a roller skate shop from an owner about to retire. By the next year, according to Ricky's own account, Mildred was happy he had gone straight and wanted to give him the Anaheim property to help build up his roller skate business. So she sent him the unrecorded deed which Leazer had given her.

Then Ricky received a shock. The 1988 deed which Leazer had given the now-deceased Lyndell had been recorded, in September 2000, by the attorney who now represents Lindella and Lenitra. Ricky could not record the deed that Mildred had given him.

As soon as he discovered the recording of the deed, Ricky petitioned the probate court to administrate Lyndell's intestate estate. Concluding they were not his brother's heirs, he did not give personal notice to Lindella or Lenitra. Notice, however, was published in a local Anaheim newspaper. In May 2002 Ricky obtained a final order of distribution of the estate.

Three months later, on August 22, 2002, it was Carman's turn to be shocked. She telephoned the county tax assessor to make certain that its office had received a certain delinquent property tax payment. (She had been living in the house, as explained more fully below.) She then learned that there had been a change in ownership of the house from Lyndell to Ricky. Mildred had apparently received the house from the estate and then transferred it to Ricky. Carman contacted her lawyer and by September 27 he had, on behalf of Lindella and Lenitra, filed a motion to set aside the order of final distribution. The motion was premised both on the discretionary relief provisions of Code of Civil Procedure section 473 and the general power of a court to set aside a judgment procured by extrinsic fraud.

B. The Evidence Bearing on the Set Aside Motion

1. The Moving Papers

The set aside motion was supported by the declarations of Carman, Lindella, and Lenitra. With regard to the claim that Lindella and Lenitra were Lyndell's natural children, the three declarations made these points:

— Lyndell and Carman grew up close together in North Carolina and began dating when Carman was 14 years old. At age 16 Carman became pregnant with Lindella (according to her, by Lyndell) and "[t]here was never any question in the minds of Lyndell and his family as to the fact that he was Lindella's and Lenitra's father."

— In 1976, Lyndell and Carman moved to Compton, where they lived with "their" daughter Lindella. They lived in a back house while Ricky and his father lived in the front house.

— In 1983, Lyndell, Carman, Lindella and Lenitra all began living together in the Anaheim house, where Lyndell resided until he died in 1989. Carman and Lenitra still reside there.

There is no statement in the moving papers about any public declarations which Lyndell might have made concerning his paternity of Lindella or Lenitra.

2. The Opposition Papers

Ricky's opposition papers told a somewhat different story.

Lyndell left North Carolina for California when Carman became pregnant by another man. However, Carman followed him to California in 1976, where they lived together four or five months in the rear of Ricky's father's property. Ricky's father did not like Carman and insisted she move. For a while she lived in a cheap motel. Lyndell and Carman had an on-off "love/hate" relationship, and their "childhood romance" motivated Lyndell to make sure that Carman was "never destitute." When Carman became pregnant with Lenitra, Lyndell told his brother that Carman had engaged in multiple affairs with other men and Lenitra was not his child. They even discussed the possibilities of who might have fathered Lenitra. Further, Carman had received welfare checks at a residence in Compton when, according to her declaration, she was supposedly living in the Anaheim house.

As to the Anaheim house, while Lyndell had allowed Carman to move into it, he "always maintained other residences where he lived more often and spent more time" than he did at the Anaheim house.

C. The Result of the Set Aside Motion

The motion was granted because of the lack of notice. "The court finds," the minute order said, "that no notice was given to potential parties."

Ricky timely appealed from the formal set aside order. Neither the minute order nor the ultimate final order mentions whether the court was acting pursuant to section 473 of the Code of Civil Procedure or the general doctrine of extrinsic fraud.

III. DISCUSSION

A. The Problem: The Petitioner Is a Judge in His or Her Own Cause

This case brings into sharp focus a problem in probate estate administration that did not exist in California prior to Tulsa Collection, supra, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565. In Tulsa Collection, the United States Supreme Court held that creditors of estates — when they were "known" or, more significantly for our purposes here, "reasonably ascertainable" — were entitled to personal notice of estate proceedings, that is, by mail or personal service. (Id. at p. 491, 108 S.Ct. 1340.) Mere notice by publication in a newspaper would not comport with due process.

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