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Estate of Anna M. Hickey, Deceased. v. Linda Alexander

October 10, 2012


(Super. Ct. No. 34-2007-00540137-PR-PW-FRC)

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

Estate of Hickey CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In October 2007, Larry G. Hickey, Sr., filed a petition for probate of his late mother's will and for letters of administration. Linda Alexander filed her objection "[a]s the first born child" in November 2007. Following mediation that resulted in the parties coming to an agreement, the probate court granted the petition in March 2008. Pursuant to the agreement, objector Alexander had the right to live in the decedent's residence during the administration of the estate and purchase it for a percentage of its assessed value. When she failed to take any action to exercise the purchase option (while continuing to live in the residence rent free), the probate court issued a November 2008 order that compelled Alexander to cooperate in the sale of the real property to a third party and denied her objections to the appraisal of the property.

The probate court assumed supervision of the property sale in February 2009. It granted a petition to confirm a sale of the property in June 2009, rejecting Alexander's various efforts in court to stop the sale. However, the buyer refused to go through with the purchase in the face of Alexander's threats, lack of cooperation with the escrow process, and refusal to vacate the property, leading the probate court to issue an order directing Alexander to vacate the residence (which she disregarded). In July 2010, the probate court granted a petition to confirm a new sale of the real property--denying Alexander's last-minute challenges--after confirming Alexander did not have the present ability to perform the terms of any overbid.*fn1

In September 2010, Alexander filed a notice of appeal in propria persona. It identified a "[j]udgment after court trial," listing a date of "2008 - July 21, 2010." Her opening brief indicates that her intent was to appeal from "all judgments" of the probate court. (Italics added.)

After repeated extensions of time to file an opening brief, Alexander (who continues to represent herself) at last produced one in December 2011. Even though we granted four requests for extensions of time, she did not file a reply brief by the final May 2012 deadline. She also failed to provide a copy of the record to Hickey upon filing her opening brief, as he requested under California Rules of Court, rule 8.153.*fn2

As Hickey correctly states, Alexander "fails to identify or provide any coherent argument in her [30-page] brief." We shall therefore dismiss her appeal as to any order other than the July 2010 confirmation of sale and otherwise affirm.


As a matter of fairness to their opponents (and others with business in this court), those who choose to proceed without an attorney are not entitled to any greater degree of consideration and are expected to meet the same standards as the attorneys who appear before us. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)

Thus, to overcome the presumption that a judgment or order is correct, an appellant must affirmatively demonstrate the error in the judgment (Denham v. Superior Court (1970) 2 Cal.3d 557, 564), and supply a complete record on the point (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187). Pursuant to this cardinal principle of appellate procedure, an appellant must provide an argument (appearing under a heading summarizing its thesis) that does not include tangential claims unrelated to the heading, supported with relevant authorities. The brief must also include an objectively complete account of the pertinent facts, rather than only those favorable to the appellant, with specific citations to the record on each point. (Hauselt v. County of Butte (2009) 172 Cal.App.4th 550, 563; Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 591, fn. 8, 593 & fn. 10 (Imagistics Internat.); Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) An appellant must also specify the prejudice from any error on the facts of the case. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) Failure to comply with these principles results in the forfeiture of any claim of error.

Alexander's notice of appeal is timely only as to the July 21, 2010 order confirming the sale of the decedent's real property. (Rule 8.104; Prob. Code, § 1300, subd. (a);*fn3 see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 208, p. 282 (Witkin).) Accordingly, the appealable 2008 orders admitting the decedent's 2005 will into probate pursuant to the mediation agreement (and appointing Hickey as executor),*fn4 and ordering Alexander to cooperate with the sale of the real property to a third party (denying her objections to the appraisal) are final and are not subject to any reexamination for errors at this late date. (§ 1300, subds. (a) & (b); 9 Witkin, supra, Appeal, §§ 212-213, p. 284; Aerojet-General Corp. v. American Excess Ins. Co. (2002) 97 Cal.App.4th 387, 398.) The June 2009 order confirming the first attempt to sell the property is also final and not subject to any challenge in the present appeal.

As a result, Alexander's aspersions regarding the circumstances of the decedent's death, the authenticity of the 2005 will, the suitability of a person of Hickey's character*fn5 to be an executor, the coerced nature of the mediation procedures, the supposed obstacles that thwarted her efforts to exercise her right to buy the real property (and her claim the appraisal was an inflated value), and the behavior of opposing counsel toward her in the course of those earlier proceedings all come too late, as does her asserted sole prayer for relief that asks for the reallocation of the estate's distribution equally between herself and another sibling to the exclusion of their brother. Conversely, the ...

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