Boktor v. Boktor CA2/7

Filed 11/13/26 Boktor v. Boktor CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN MARY BOKTOR, B339436 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 18SMCV00223) v. ANTON BOKTOR et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Small, Judge. Affirmed. Tahmazian Law Firm and Jilbert Tahmazian for Plaintiff and Appellant. Law Offices of Berna Warner Fredman and Berna Lynn Warner for Defendants and Respondents. ________________________  INTRODUCTION Mary Boktor appeals from a judgment dismissing her action against her uncle, Anton, and her cousins, Joseph and Jacqueline (collectively, respondents).1 Mary, and three other cousins who are not parties to this appeal, brought a collateral attack on the conclusiveness and finality of the probate proceedings involving the estate of Nema, the cousins’ grandmother and Anton’s mother. After a bench trial, the court determined Mary and the other plaintiffs failed to carry their burden to prove the probate orders were procured through extrinsic fraud. The court found Mary and the others had actual notice of the probate action but chose not to participate in it. The court also found respondents complied with the publication requirements under the Probate Code. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Nema had seven children, including Anton and Anis. Anis is also known as Andy. Jacqueline and Joseph are Anton’s children. Nema’s other grandchildren included Mary, Anwar, Brant, Peter, Mariam, and Christina. Nema died on January 5, 2011. Before her death, Nema lived in a house on Wellesley Avenue in Los Angeles with Anton, Andy, and sometimes Peter. Nema held title to the Wellesley property. On September 2014, three years after her death, the family members discovered a 1 We refer to members of the Boktor family by their first names with no disrespect intended. 2 holographic will handwritten in Arabic by Nema. The translation reads: I, Nema Rashad Yaqtar, attest that my son, Antoine Anwat Yaqtar, had given me and gifted me the house owned by him and located at the following address: 1629 Welle[sley] Avenue, [Los Angeles, California] 90025 As a gift from him to me, and that this had occurred in the month of June, 19th day of the year 1998. I affirm that I assign this [] house to him in the event of my passing before him. If he is alive after me, he may restore ownership of the house to himself and may dispose of it at his discretion. This is my will after my death. Nema Rashed Yaqtar 28 April 2553 [sic] On September 24, 2014, Jacqueline and Joseph petitioned the probate court to administer Nema’s estate and have Nema’s will admitted to probate. From October 2014 to December 6, 2016, Jacqueline and Joseph served six notices regarding the probate action to Nema’s intestate heirs, including all of her surviving children and grandchildren. It is undisputed the first three notices were not 3 sent to Mary and the third through sixth notices were mailed to her at an address on Roscoe Boulevard in Los Angeles. Mary never lived on Roscoe Boulevard. She testified at trial that she lived in San Francisco in 2014 and moved to Rancho Palos Verdes in 2015, where she currently resided. Another of Nema’s grandchildren, Cristina, lived at the Roscoe Boulevard address. Jacqueline and Joseph also published in the Los Angeles Bulletin a notice of the initial probate petition on October 2, 3, and 9, 2014, and notice of the amended petition on November 23, 24, and 30, 2015. On January 18, 2017, the probate court approved the petition to distribute Nema’s assets, principally the Wellesley residence to Anton. No one objected to the petition to distribute, and no one appeared at the January 18, 2017 hearing. The administration of Nema’s estate was formally completed and closed on July 27, 2018. On November 14, 2018, five of Nema’s grandchildren— Mary, Brant, Peter, Mariam, Anwar, and George—filed a complaint against Anton, Jacqueline, and Joseph alleging intentional interference with expectancy of inheritance, quiet title, unjust enrichment, fraud, and negligent misrepresentation.2 The plaintiff grandchildren alleged Nema suffered from dementia as early as 2002. They further alleged, “Prior to her death and preceding mental debilitation, Nema Boktor had expressed, on numerous occasions, a clear intent that [the Wellesley home] would be shared equally by all plaintiffs and defendants.” The plaintiffs alleged Anton, Jacqueline, and Joseph caused Nema to 2 George was voluntarily dismissed from the litigation before trial. 4 handwrite and sign the will in 2003, and that during the probate proceedings, they “coerced” Andy to attest to the validity of the will. Andy died during the probate proceedings. The plaintiffs alleged they did not learn of the existence of the will until the probate was complete. The trial court set a bifurcated bench trial. In the first phase of trial, the court would determine whether the plaintiff grandchildren received notice of the probate action and whether the final distribution of Nema’s estate was obtained by extrinsic fraud. The trial court conducted the first phase of trial over six days between July 2022 and May 2023. The court heard testimony from the two attorneys who represented Jacqueline and Joseph in the probate proceedings as well as the grandchildren who were parties in the litigation and Cristina, the grandchild who lived at the Roscoe Boulevard address. The court issued a detailed, 25-page final statement of decision on November 2023, finding each of the plaintiffs had actual notice or was aware of the probate action. The court dismissed the action. In particular, the trial court found the six notices were not properly served on Mary because they were mailed to an incorrect address, but the court further found that was an “honest mistake, not an attempt to hide the Probate Action.” The court specifically found “far-fetched” the suggestion that Jacqueline and Joseph would provide notice to all of the grandchildren except for Mary, particularly when Jacqueline and Mary had a “cordial” relationship. The court credited Jacqueline’s and Cristina’s testimony that each separately and sometimes together discussed the probate proceedings with Mary from time to time during the 5 four years of probate proceedings. The court also found Mary had actual notice because Cristina testified she received the notices addressed to Mary at her home on Roscoe Boulevard and gave Mary the mail. The court further found Jacqueline and Joseph properly published notice of the probate petitions in the Los Angeles Bulletin. Mary appealed from the judgment. DISCUSSION Mary challenges the trial court’s finding she failed to demonstrate Jacqueline and Joseph obtained the probate orders through extrinsic fraud because they mailed the probate notices to Cristina’s address and not Mary’s. Mary also contends there was no evidence the Los Angeles Bulletin was a newspaper of general circulation sufficient to comply with the notice requirements under the Probate Code. A. Standard of Review “ ‘In reviewing a judgment based upon a statement of decision following a bench trial, we review questions of law de novo. [Citation.] We apply a substantial evidence standard of review to the trial court’s findings of fact. [Citation.] Under this deferential standard of review, findings of fact are liberally construed to support the judgment and we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings. [Citation.] [¶] A single witness’s testimony may constitute substantial evidence to support a finding. [Citation.] It is not our role as a reviewing court to reweigh the evidence or to assess witness credibility. 6 [Citation.] “A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” ’ ” (Hamlin v. Jendayi (2024) 105 Cal.App.5th 1064, 1074 (Hamlin); Estate of Carter (2003) 111 Cal.App.4th 1139, 1154 (Carter) [“the standard of review is that a determination of extrinsic evidence is accepted on appeal if supported by substantial evidence”].) Further, “[u]nder the doctrine of implied findings, the reviewing court must infer, following a bench trial, that the trial court impliedly made every factual finding necessary to support its decision.” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 48.) B. Governing Law “The probate of a will is conclusive if not contested within 120 days after the will is admitted to probate. [Citation.] Even in the absence of a timely contest, however, a court may exercise its equitable jurisdiction to set aside orders and decrees of probate proceedings in cases of fraud or mistake. [Citations.] It is well settled, however, that ‘only upon proof of extrinsic and collateral fraud can plaintiff seek and secure equitable relief from the judgment. A showing of fraud practiced in the trial of the original action will not suffice.’ [Citation.] The courts have required a showing of extrinsic fraud in order to accommodate both the policy in favor of resolving issues in a final judgment and the policy in favor of a fair adversary proceeding in which each party is provided an opportunity to fully present its case.” (Estate of Sanders (1985) 40 Cal.3d 607, 613–614 (Sanders); see Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300; see also Prob. Code, § 8270.) “The clearest examples of extrinsic fraud are cases in which the aggrieved party is kept in 7 ignorance of the proceeding or is in some other way induced not to appear.” (Sanders, at p. 614.) In Sanders, supra, 40 Cal.3d 607, for example, the executor to the decedent’s estate committed extrinsic fraud where he had the decedent change her will to leave most of the estate to him before her death, unbeknownst to the beneficiaries under the original will, and deceived the prospective beneficiaries into believing that they did not need to attend probate proceedings because he was taking care of their interests. (Id. at pp. 615– 617.) The court rejected the executor’s argument that the beneficiaries’ receipt of all legal notices precluded a finding of extrinsic fraud, explaining that where a fiduciary relationship exists and “the fiduciary has led the aggrieved party to believe that his interests will be protected, receipt of legal notice of the proceeding will not preclude equitable relief. The aggrieved party has a right to rely on the trust created by the special relationship and may assume that the fiduciary will abide by his duty to act in good faith.” (Id. at p. 619; see also Carter, supra, 111 Cal.App.4th at pp. 1143–1144, 1154–1155 [affirming order vacating final distribution; brother, who filed probate petition, engaged in extrinsic fraud by determining decedent’s daughters born out of wedlock were not heirs and not providing notice to them].) There are two types of notice that must be provided in probate proceedings: notice by mail to potential heirs and notice by publication in a newspaper of general circulation. First, notice of the hearing for the administration of a decedent’s estate must be served by mail to all heirs, “so far as known to or reasonably ascertainable by the petitioner” and all devisees “in any will being offered for probate, regardless of whether the devise or appointment is purportedly revoked in a subsequent instrument.” 8 (Prob. Code, § 8110.) Notice of the hearing on the petition for final distribution also must be served by mail to each heir and devisee “whose interest in the estate would be affected by the petition.” (Prob. Code, § 11601.) Second, notice must be published in a newspaper of “general circulation” in the city in which the decedent resided at the time of death. (Prob. Code, §§ 8120, 8121.) “A ‘newspaper of general circulation’ is a newspaper published for the dissemination of local or telegraphic news and intelligence of a general character, which has a bona fide subscription list of paying subscribers, and has been established, printed and published at regular intervals in the State, county, or city where publication, notice by publication, or official advertising is to be given or made for at least one year preceding the date of the publication, notice or advertisement.” (Gov. Code, § 6000; see also Gov. Code, § 6008.) C. Substantial Evidence Supports the Trial Court’s Finding the Probate Orders Were Not Procured by Extrinsic Fraud The trial court found Mary was “aware of the Probate Action while it was pending” despite Jacqueline and Joseph’s failure to serve her by mail at the correct address. Substantial evidence supports the trial court’s factual finding. The court credited Jacqueline’s testimony that she discussed the probate action with Mary on several occasions while it was pending. The court also credited Cristina’s testimony that she participated in Jacqueline’s conversations with Mary about the probate matter. It also credited Cristina’s testimony that she gave Mary mail that Cristina understood was related to the probate action that had mistakenly been sent to Cristina’s home. Mary’s actual 9 knowledge of the probate action, as established by substantial evidence, thus negates Mary’s claims that Jacqueline and Joseph obtained the probate orders through extrinsic fraud. (See Yolo County Dept. of Child Support Services v. Myers (2016) 248 Cal.App.4th 42, 49 [party with actual knowledge of proceedings may not invoke extrinsic fraud doctrine]; Ellard v. Conway (2001) 94 Cal.App.4th 540, 542–543 (Ellard) [same].) Mary argues Jacqueline’s and Cristina’s testimony was “vague” and insufficiently specific to prove they discussed Nema’s probate action with Mary as opposed to “probate in general.” We decline to accept Mary’s characterization of their testimony over the trial court’s. The probate court heard testimony at trial over several days from Mary, Jacqueline, and Cristina, and it credited that of Jacqueline and Cristina over Mary. “ ‘It is not our role as a reviewing court to reweigh the evidence or to assess witness credibility.’ ” (Hamlin, supra, 105 Cal.App.5th at p. 1074.) For the same reason, we reject Mary’s argument that “providing an incorrect address for Mary was not an innocent mistake.” At trial, Joseph testified he took charge of providing the contact information for the potential heirs to the attorney in the probate action. Joseph testified Mary was “estranged” from the family, and he was unable to “get anything solid” about her whereabouts. He explained, Mary’s notice may have been inadvertently sent to the Roscoe Boulevard address because “there’s a lot of Boktors” and the attorney may have become confused. Although perhaps unsatisfactory to Mary, this is substantial evidence supporting the trial court’s finding that sending notice to Mary at the wrong address was an “honest mistake.” In all events, the trial court found Mary received actual notice of the probate action from her discussions about it 10 with Jacqueline and Cristina, and because Cristina gave her the mailed notices. Under these circumstances, an incorrect mailing address does not establish extrinsic fraud.3 Mary relies on the misaddressed notices to assert that failure of “actual or constructive notice [to an heir] through service to an address reasonably believed to be current” constitutes legal error and a denial of due process. Mary contends “California law requires strict compliance with notice statutes in probate.” However, she provides no authority for the proposition that mailing a notice to the wrong address constitutes extrinsic fraud as a matter of law when other evidence demonstrates her actual knowledge of the probate proceedings. Ellard, supra, 94 Cal.App.4th at pages 542–543, which Mary cites, instead supports the conclusion that actual knowledge defeats an allegation of improper service. There, the defendants moved to vacate a default judgment because they were not personally served but were provided with substitute service. (Ibid.) The court, citing the statutory requirements for service of process of a complaint, held substitute service was 3 In her reply brief, Mary cites Aldabe v. Aldabe (1962) 209 Cal.App.2d 453, 475 to argue that an “extrinsic mistake is sufficient” to relieve a party from a default judgment where circumstances deprived him or her of a fair hearing. Even assuming Aldabe remains good law and does not conflict with the California Supreme Court’s later holding in Sanders, the probate court’s finding that Mary had actual knowledge of the probate proceedings overrides any proof of extrinsic mistake. (See Sanders, supra, 40 Cal.3d at p. 614 [“ ‘only upon proof of extrinsic and collateral fraud can plaintiff seek and secure equitable relief from the judgment’ ”].) 11 proper because the evidence showed the defendants had notice of the lawsuit in time to defend against it. The defendants discussed possible settlement with the plaintiffs’ counsel within three weeks of service of process. (Id. at p. 548.) As in Ellard, here the evidence shows Mary had actual notice of the probate proceedings because Cristina and Jacqueline told Mary about them. The other cases Mary relies on for the proposition that strict compliance of the notice statutes is required are inapt. In Munoz v. Lopez (1969) 275 Cal.App.2d 178 (Munoz), the plaintiffs sued their former attorney and represented they served him by publication and personal service under the assumption he had left the state. The proof of service, however, was “seriously defective” and demonstrably false. Additionally, “[n]o proof of publication appears in the judgment roll.” (Id. at pp. 179–180.) The trial court granted the respondent attorney’s motion to set aside the default judgment against him on the ground he was never served. (Ibid.) Munoz held, “[A] false recital of service although not deliberate[,] is treated as extrinsic fraud or mistake in the context of an equitable action to set aside a default judgment.” (Id. at p. 181.) In In re Marriage of Park (1980) 27 Cal.3d 337, 340 the husband was the sole witness to his ex-wife’s involuntary deportation to Korea. When she did not appear for subsequent hearings in the dissolution proceedings, the husband suggested to the court she voluntarily moved to Korea and he received full custody of the children and the bulk of the marital assets. (Id. at p. 341.) The trial court denied the wife’s motion to vacate the judgment. (Id. at p. 342.) The California Supreme Court reversed, holding the husband perpetrated a fraud on the trial 12 court as well as his wife by suggesting she moved voluntarily. (Id. at p. 343.) Munoz and Park are distinguishable and do not apply to the facts in this case. There is no contention that Jacqueline and Joseph submitted a false proof of service or otherwise misled the trial court about their knowledge of Mary’s address. As stated, the court instead made a credibility finding as the trier of fact that the use of the incorrect address did not constitute extrinsic fraud, that it was an honest mistake, and that Mary actually knew about the probate action. D. Mary Has Not Shown She Contested the Trial Court’s Conclusion That the Los Angeles Bulletin Was a Newspaper of General Circulation Mary next contends there was no evidence the Los Angeles Bulletin was a newspaper of general circulation and urges us to “remand the matter with directions for the trial court to make express findings under Government Code §§ 6000 and 6020.” We decline to do so because Mary has failed to show express findings are required or that she brought the issue of the lack of evidence to the trial court’s attention. We thus presume the judgment is correct and “all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Arceneaux).) Mary asserts we may not make this presumption because she objected to the court’s proposed statement of decision and Arceneaux, supra, 51 Cal.3d at page 1133 holds she may avoid any implied findings if the omissions or ambiguities in the proposed statement of decision are brought to the court’s attention. In support, Mary cites the trial court’s case register 13 showing the plaintiffs filed on October 20, 2023, a document titled Objection to Proposed Statement of Decision. This line item in the case register does not show Mary specifically objected to the court’s conclusion that “[t]here is no dispute that the Los Angeles Bulletin is a newspaper of general circulation.” Under these circumstances, we presume Mary did not bring the issue to the court’s attention and she has forfeited the right to claim on appeal that the final statement of decision was deficient in this regard. (Arceneaux, at p. 1134.) In short, Mary has failed to meet her burden on appeal to demonstrate prejudicial error. (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277; Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655–656.) E. Citation Irregularities by Mary’s Counsel Respondents argue Mary’s counsel used generative artificial intelligence to draft the portion of the opening brief addressing notice by publication because none of the four cases cited by Mary in that section exist.4 We denied Mary’s counsel’s request to file an amended opening brief. In her reply brief, Mary’s counsel concedes that “through inadvertence and excusable neglect, the cases are improper.” While counsel denies “subscrib[ing]” to artificial intelligence, he admits he used an outside paralegal to perform “ ‘law and motion’ ” related work and 4 In the previous section, Mary’s counsel cites Reid & Hellyer v. Laski (1924) 193 Cal. 512, 526 for the proposition that “California law requires strict compliance with notice statutes in probate.” We are unable to find a case with that citation or those names. Separately, Mary’s counsel also admits she misquoted a sentence in Munoz, supra, 275 Cal.App.2d 178 on page 25 of her opening brief. 14 that his staff attorney did not review the cases cited in drafts of the opening brief. He is “not sure how the citation irregularities occurred” and states the press of business directed his attention elsewhere. Respondents, however, do not seek sanctions pursuant to California Rules of Court, rule 8.276(b), which specifies that a party’s motion for sanctions, among other things, “must include a declaration supporting the amount of any monetary sanction sought.” Although citation of fabricated authorities in appellate briefs is a serious matter and several other courts have imposed sanctions for such conduct (see, e.g., Del Biaggio v. Bansen (2026) 121 Cal.App.5th 831, 847 [collecting cases; imposing a $1,500 sanction]; Noland v. Land of the Free, L.P. (2025) 114 Cal.App.5th 426, 442 [imposing $10,000 sanction]), under the circumstances presented we decline to impose sanctions on our own motion. (See Cal. Rules of Court, rule 8.276(a), (c).) DISPOSITION The judgment is affirmed. Respondents may recover their costs on appeal. MARTINEZ, P. J. We concur: FEUER, J. STONE, J. 15