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Estate of Robert Clinton Moss, Sr., Deceased. v. Lorraine Bergeron Moss As Executor

March 20, 2012

ESTATE OF ROBERT CLINTON MOSS, SR., DECEASED. BARRY D. MOSS, CONTESTANT AND APPELLANT,
v.
LORRAINE BERGERON MOSS AS EXECUTOR, ETC., CLAIMANT AND RESPONDENT.



(Super. Ct. No.37-2009-00151875-PR-PW-CTL) APPEAL from an order of the Superior Court of San Diego County, Gerald C. Jessop, Judge. Reversed.

The opinion of the court was delivered by: Aaron, J.

CERTIFIED FOR PUBLICATION

I.

INTRODUCTION

Any interested person who wishes to contest a will may bring a contest before the will is admitted to probate (i.e., a preprobate contest) (Prob. Code, § 8250).*fn1 In addition, "any interested person, other than a party to a will contest and other than a person who had actual notice of a will contest in time to have joined in the contest," may bring a contest after the will is admitted to probate (i.e., a postprobate contest) (§ 8270, italics added.) Upon filing either a preprobate or postprobate contest, the contestant must serve a summons on certain statutorily specified persons. (§§ 8250, 8271.) A person who receives such a summons may file a demurrer to the contest within 30 days of service of the summons. (§§ 8251, 8271, subd. (b).)

In this case, Lorraine Bergeron Moss (Lorraine) filed a petition to probate a will of Robert Clinton Moss, Sr. (the decedent). In her petition, Lorraine alleged that she was the decedent's spouse and executor of the will. The decedent's son, Oliver L. Moss (Oliver), and grandson, Barry D. Moss (Barry), filed preprobate contests. The trial court admitted the will to probate without adjudicating, on the merits or otherwise, the preprobate contests.

Barry filed a postprobate contest to the will. Barry effectuated personal service of his postprobate contest on Lorraine's attorney of record in the action, Margaret K. Herring. Attorney Herring subsequently filed a declaration in which she asserted that the time for filing a demurrer had not yet expired because Herring was not authorized to accept service of process on Lorraine's behalf, and Barry had failed to serve Lorraine personally with a copy of the postprobate contest. Lorraine subsequently filed a demurrer to Barry's postprobate contest, claiming that Barry was precluded from bringing a postprobate contest because he had already brought a preprobate contest and because he had actual notice of Oliver's preprobate contest, among other contentions. Without expressly ruling on the timeliness of the demurrer, the trial court sustained Lorraine's demurrer without leave to amend, ruling that the bar against successive probate contests contained in section 8270 precluded Barry's postprobate contest.

On appeal, Barry contends that the trial court erred in implicitly concluding that Lorraine's demurrer was timely. Barry contends that service of process on a party's attorney of record in a case is sufficient service of process under Code of Civil Procedure section 416.90. Courts have interpreted that statute to permit service of process to be made on a person who has "ostensible authority to accept service" on behalf of a party. (Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal.App.3d 1012, 1018 (Warner Bros.).) We conclude that Barry's service of his postprobate contest on Lorraine's attorney of record in the action constituted proper service of process on Lorraine, and that Lorraine's demurrer was therefore untimely under the applicable statutes.

In the alternative, Barry contends that the trial court erred in concluding that section 8270 barred his postprobate contest. We conclude that the trial court erred in sustaining Lorraine's demurrer on the ground that that the bar against successive probate contests contained in section 8270 barred Barry's postprobate contest, because the trial court never adjudicated Barry's preprobate contest. Accordingly, we reverse the court's order sustaining the demurrer.*fn2

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Oliver's petition to probate the decedent's 1996 will

In July 2009, Oliver filed a petition to probate the decedent's will. Oliver's petition stated that that the will was dated "1993." In an addendum to the petition, Oliver stated that he "requested a copy of the last known Last Will & Testament of [the decedent] and was denied access by [Lorraine]."*fn3 Oliver subsequently filed a supplemental brief in which he stated that he had recently obtained access to a will dated August 30, 1996 (1996 Will), which he claimed should be admitted to probate as the decedent's will. Oliver attached a copy of the 1996 Will to his brief.

B. Lorraine's petition to probate the decedent's 2006 will

In September 2009, Lorraine filed an objection to Oliver's petition, and also filed her own petition to probate a will dated September 13, 2006 (2006 Will) in the decedent's estate. Attorney Herring appeared in the action and filed the petition and the objection on behalf of Lorraine.

Lorraine later filed declarations from the two attesting witnesses to the 2006 Will in which the witnesses stated that they had observed the decedent sign the 2006 Will, and that the decedent appeared to be of sound mind at the time he executed the will.

C. The preprobate contests to the 2006 Will

In October 2009, Oliver, Barry, and the decedent's granddaughter, Jill Blackwell, each filed separate objections (preprobate contests) to Lorraine's petition to probate the 2006 Will. Blackwell's objection stated that the decedent's purported handwriting on the 2006 Will did not match known handwriting samples of the decedent.*fn4 In the alternative, Blackwell claimed that at the time the 2006 Will was purportedly executed, the decedent lacked sufficient mental capacity to effectuate a will. Blackwell supported this claim with a declaration concerning her knowledge of the decedent's mental capacity in 2006.*fn5
Barry raised several claims in his objection, including that the handwriting on the 2006 Will did not appear to be the decedent's. Barry also questioned the authenticity of the 2006 Will and whether Lorraine and the decedent had in fact ever been married.*fn6 Oliver's objection stated grounds nearly identical to the grounds stated in Barry's objection. As discussed above, Oliver also filed a supplemental brief in which he requested that the court admit the 1996 Will to probate. In this brief, Oliver raised additional objections to Lorraine's petition and requested that the attesting witnesses to the 2006 Will be "subject[ed] to cross-examination" with respect to their declarations.

D. The trial court's order admitting the 2006 Will to probate

As discussed in greater detail in part III.B.2, post, on November 19, 2009, the trial court held a hearing on Lorraine's petition. At the conclusion of the hearing, the court admitted the will to probate.

E. Barry's postprobate contest of the 2006 Will and petition to admit the 1996 Will to probate

In January 2010, Barry filed a petition to revoke the 2006 Will (postprobate contest). Barry's postprobate contest raised several of the same contentions that he had raised in his preprobate contest, as well several additional contentions. Barry listed numerous grounds for contesting the will, including fraud, forgery, misrepresentation, undue influence, and lack of due execution. Barry also stated that he believed "[Lorraine] conspired with others to manufacture documents designed to defraud the Moss family of their rightful legacy and inheritance."

In May 2010, Barry filed his own petition to probate the 1996 Will.

F. Lorraine's demurrer

In May 2010, Lorraine filed a demurrer to Barry's postprobate contest on several grounds, including that section 8270, subdivision (a) precluded Barry's attempt to bring a postprobate contest, since he had brought a preprobate contest pertaining to the same will. In June 2010, Barry filed a document entitled "Declaration of Barry D. Moss in Objection to the Probate of the Purported Last Will & Testament of Robert C. Moss, Sr. Dated September 13, 2006." In his declaration, Barry raised several arguments pertaining to the merits of his petition and urged the trial court to "set a trial date to hear the case and review the evidence." He also contended, "[Barry] is not barred from bringing a contest because [Barry] has always maintained his intention to bring a contest as is evidenced by [Barry's] first objection to [Lorraine's] application for probate, which is contained in the court file."

The trial court sustained the demurrer without leave to amend, reasoning in part as follows:

"A review of the court file shows that Mr. Barry Moss filed several objections to the petition to probate filed by [Lorraine], which was granted by the court. [Citations] A review of these filings show[s] that Mr. Barry Moss filed objections to . . . the will, alleging that the will was a forgery based on the decedent's purported handwriting and signature. [Citation.] [¶] A review of the court file further shows that Mr. B. Moss had actual notice of the contest filed by his father, Oliver L. Moss, in light of the proof of service of the petition filed by [] Oliver. [Citation.] Hence pursuant to Probate Code [section] 8270[, subdivision] (a), the Court sustains the instant demurrer without leave to amend."

The court stated that in light of its ruling sustaining Lorraine's demurrer, it would dismiss Barry's petition to probate the 1996 Will.

G. Barry's appeal

Barry filed a notice of appeal from the August 26, 2010 order sustaining Lorraine's demurrer and dismissing his petition to probate the 1996 Will.

III.

DISCUSSION

A. The trial court erred in implicitly*fn7 ruling that Lorraine's ...


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