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Estate of Reed

California Court of Appeals, First District, Fifth Division

November 8, 2017

Estate of VICTOR REED, Deceased. DANIEL REED, Petitioner and Respondent,
v.
WILLIAM REED, Objector and Appellant SHELLEY OCAÑA, as Executor, etc., Respondent.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

         Superior Court of Sonoma County, No. SPR-82625, Hon. Hon. Nancy Schaffer, Judge.

          Knitter & Knitter, David G. Knitter; William Reed, in pro. per., for Objector and Appellant.

          Friedemann Goldberg, Stephanie Barber Hess, John N. MacLeod; Ballard Law Office and Benjamin H. Ballard, for Petitioner and Respondent.

          Spaulding McCullough & Tansil, Gregory G. Spaulding, Carmen D. Sinigiani, for Respondent Shelley Ocaña.

          SIMONS, J.

         In this probate case, William Reed appeals a 2016 statement of decision removing him as the personal representative of the probate estate. William had previously been removed pursuant to an order of the trial court issued in April 2015, which explicitly referred to a forthcoming written decision that would set forth the basis for the removal order. In the published portion of this opinion, we reject respondents' argument that the April 2015 order was immediately appealable because we conclude the trial court had expressly reserved jurisdiction to issue a further statement of its reasons and the order was therefore not final. In the unpublished portion, we affirm the trial court's rulings.

         BACKGROUND

         William and Daniel Reed[1] are the children of Victor Reed (Decedent), and are identified in Decedent's will as the beneficiaries of his estate (the Estate). In 2010, the probate court appointed William as the personal representative of the Estate.

         In 2014, Daniel filed a petition alleging that, although William was appointed as personal representative of the Estate in July 2010, he had not yet filed any reports on the status of the administration of the Estate. The petition also alleged multiple notices of default had been recorded against certain real property owned by the Estate, William had not rented out the real property or otherwise made it productive, and Daniel did not know the status of the remaining assets of the Estate. The petition sought to compel William to file an inventory and appraisal, order him to reimburse the Estate for losses incurred due to his conduct, and remove him as personal representative.

         Trial on the petition was held in March 2015. At the conclusion of the trial, the court orally announced its decision to remove William as personal representative and to appoint Shelley Ocaña in his place. The final statement of decision (the Statement of Decision) issued in April 2016. William appealed from the Statement of Decision.[2]

         DISCUSSION

         I. Appealability

         Respondents challenge the appealability of the Statement of Decision. William relies on Probate Code section 1300, subdivision (g), which provides that an order “[s]urcharging, removing, or discharging a fiduciary” is appealable, and section 1303, subdivision (a), which provides that an order “[g]ranting or revoking letters to a personal representative, ” with exceptions not relevant here, is appealable. (See also Code Civ. Proc., § 904.1, subd. (a)(10) [appeal may be taken from “an order made appealable by the provisions of the Probate Code”].)

         A. Statement of Decision

         Respondents argue that statements of decision are nonappealable. This is effectively an argument that the appeal is premature. We reject this contention.

         “The general rule is that a statement or memorandum of decision is not appealable. [Citations.] The rule's practical justification is that courts typically embody their final rulings not in statements of decision but in orders or judgments. Reviewing courts have discretion to treat statements of decision as appealable when they must, as when a statement of decision is signed and filed and does, in fact, constitute the court's final decision on the merits.” (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901.)

         The Statement of Decision includes a section entitled “Orders, ” which includes the following: “Finds that it is in the best interest of the Estate to remove [William] from his position as executor of the Estate.” This is most reasonably construed as an order removing a fiduciary, an appealable order under the Probate Code. (Prob. Code, § 1300, subd. (g).) Because the Probate Code provides for an appeal from an order removing a fiduciary, the appeal should not be dismissed on the ground that the order appears in a statement of decision rather than a separate order or judgment.

         B. April 2015 Order

         Respondents next argue the final order removing William as personal representative issued in April 2015 and, because William did not file a timely notice of appeal from the April 2015 order, this court lacks jurisdiction to review that order now.

         1. Background

         At the conclusion of the March 2015 trial, the trial court issued an oral ruling finding William should be removed as personal representative. Because the Estate was in the process of negotiating the sale of real property and the court did not want William's removal to be an impediment to the sale, the court suspended William's powers as personal representative except for those powers connected to signing documents regarding the sale of the property in question. The court appointed Ocaña ...


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