Estate of Fernandez CA2/4

Filed 11/4/26 Estate of Fernandez CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR Estate of PEDRO FERNANDEZ, B340674 Deceased. (Los Angeles County DEBORAH FERNANDEZ, Super. Ct. No. 20STPB06864) Petitioner, Cross-Objector and Respondent. v. NILDA MORETTI, Cross-Petitioner, Objector and Appellant, APPEAL from an order of the Superior Court of Los Angeles County, Lynn H. Scaduto, Judge. Affirmed. Ruttenberg Cutler Broomer, Matthew D. Kanin; Law Offices of Debra Graynom-Daly and Debra Graynom-Daly for Cross-Petitioner, Objector, and Appellant.  W. Vito Lanuti & Associates, W. Vito Lanuti; Jeff Lewis Law, Jeffrey Lewis, Kyla Dayton and Tim Cotter, for Petitioner, Cross-Objector and Respondent. __________________________ Appellant Nilda Moretti appeals from the probate court’s order finding that cashier’s checks located in the home of decedent Peter Fernandez (“Pedro”) at the time of his death belonged to Pedro’s estate.1 The cashier’s checks were issued to Pedro when his bank closed his accounts months before he died. Moretti argues she was entitled to the proceeds from the cashier’s checks because she was the pay-on-death beneficiary of the bank accounts before they were closed. She further argues the court erred by deciding this issue, as well as an issue regarding $176,000 in cash in Pedro’s home at the time of his death, without an evidentiary hearing. We conclude Moretti does not show error and affirm. FACTUAL AND PROCEDURAL BACKGROUND Pedro owned eight rental properties with 36 dwelling units on them. He and Moretti were in a romantic relationship, but not married, and cohabitated for 33 years before Pedro’s death in August 2020. Pedro executed a will in July 2010. The will named his daughter Deborah executor. The 2010 will revoked all of Pedro’s “previous wills and codicils.” It stated, “It is my intention by this will to dispose of all property over which I have the power of testamentary disposition at the time of my death.” 1 Because Pedro and respondent share the same last name, we refer to them by their first names for clarity. 2 The will left Moretti a life estate in the property where she and Pedro lived together. It also gave Moretti the right during her life to receive all rents generated by two of Pedro’s other properties. The remainder of Pedro’s estate was left to Deborah and Pedro’s grandchildren. In October 2019, Pedro opened two accounts with JPMorgan Chase Bank, N.A. (“Chase”). The account agreements designated Moretti as the pay-on-death beneficiary and granted her power of attorney over the accounts. Five months later, in March 2020, Chase sent Pedro a letter stating it was closing the accounts. No reason was given. In April 2020, Pedro and Moretti went to a Chase bank. Moretti met with a manager. Chase issued three cashier’s checks payable to Pedro in an amount equal to what had been in his accounts: $900,383.99. Moretti took the checks and gave them to Pedro, who kept the checks in their home. In July 2020, Pedro was admitted into hospice care. He died the following month without having deposited the cashier’s checks into an account. At her deposition, Moretti said she discussed depositing the checks with Pedro “[a]lmost all the time,” about “[t]wo, three times a week,” up until he went into hospice care. When she told him the checks should go to a bank, Pedro responded, “‘I know what I’m doing.’” Additionally, between January and August 2020, Moretti collected income generated from several rental properties Pedro owned. Some rental payments were made in cash, but the cash was not deposited into a bank account. A few weeks after Pedro died in August 2020, Moretti deposited $176,000 of the cash into her personal bank account. Moretti admitted at her deposition that the rental income belonged to Pedro. 3  In January 2021, Pedro’s 2010 will was admitted into probate and Deborah was appointed executor the following month. As executor, Deborah filed a petition seeking to determine ownership of the rental income in Moretti’s possession and the proceeds from the cashier’s checks issued to Pedro.2 Moretti objected to the petition and later filed her own petition against Deborah as executor. At a trial setting conference in March 2024, the probate court indicated the facts concerning the cashier’s checks and rental income were not disputed and the issues concerning their ownership could be determined as a matter of law. The court ordered the parties to file briefs and set a hearing for May 2024. In her brief, Moretti requested a trial on the “contested issues” in the parties’ petitions. At the May 2024 hearing, the probate court requested an offer of proof from Moretti as to why an evidentiary hearing should be held. Moretti argued a hearing was necessary for the court to decide Pedro’s “intent.” After discussing the facts and issues with the parties, the court again asked Moretti for an offer of proof. It asked her to identify the evidence she would produce if there were a trial. She said she would bring in a “bank expert” to opine on Probate Code section 5303,3 the Chase bank manager, and friends who could attest to Pedro’s intent to take care of her. She said she would also bring in the attorney who drafted the will. Lastly, Moretti said she had “documentary evidence,” specifically “the [pay-on-death] documents.” 2 Following Pedro’s death, Moretti agreed to turn the checks over to Deborah so that Deborah could deposit the proceeds in a segregated bank account pending resolution of their claims. 3 All further statutory references are to the Probate Code. 4  The probate court determined that the facts needed to decide the ownership of the assets in question at the time of Pedro’s death were undisputed. It issued a minute order concluding that the proceeds from the cashier’s checks and the rental income belonged to Pedro’s estate. Moretti asked the court for a statement of decision, and the court directed Deborah to prepare a proposed statement of decision. A few weeks later, Deborah filed a proposed statement of decision. Moretti objected. In July 2024, the probate court issued an order indicating it had reconsidered Moretti’s request for a statement of decision and concluded one was not required because a trial was not held. Moretti appealed from this order. DISCUSSION A. Deborah’s Motion to Dismiss the Appeal Deborah moves to dismiss the appeal, arguing that Moretti was required to appeal from the minute order reflecting the May 2024 hearing, not the July 2024 order. The motion is denied. At the conclusion of the May 2024 hearing, the probate court ordered Deborah to prepare a proposed statement of decision. By stating that another written order setting forth the court’s findings was forthcoming, the court reserved jurisdiction over the matter. (Estate of Reed (2017) 16 Cal.App.5th 1122, 1128; cf. ibid. [“order appealable where ‘it contemplated no further action, such as the preparation of another order or judgment’”].) The July 2024 order confirmed no further action 5 would be taken. We reject Deborah’s claim that the May 2024 order was immediately appealable.4 B. Moretti Does Not Establish She Is Entitled to the Proceeds from the Cashier’s Checks Moretti contends she is the rightful owner of the proceeds from the cashier’s checks issued by Chase to Pedro. She argues she is entitled to the proceeds under the Probate Code because, before the accounts were closed, she was the pay-on-death beneficiary. According to Moretti, a constructive trust should be imposed on the proceeds, and she should be the beneficiary.5 We conclude Moretti fails to show the trial court erred. “An action to impose a constructive trust is a suit in equity to compel a person holding property wrongfully to transfer the property interest to the person to whom it rightfully belongs.” (Higgins v. Higgins (2017) 11 Cal.App.5th 648, 658 (Higgins).) “Three conditions must be shown to impose a constructive trust: 4 We note that no notice of entry of judgment or order concerning the May 2024 order was served, and Moretti timely appealed within 180 days of that order. (Cal. Rules of Court, rule 8.104(a)(1)(C).) The notice of appeal made it reasonably clear what ruling Moretti intended to appeal, and Deborah does not argue she was misled or prejudiced in any way by the notice of appeal. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 22.) Thus, we would also liberally construe the notice of appeal to encompass the probate court’s May 2024 order. 5 Moretti did not raise her constructive trust argument before the probate court issued its May 2024 decision. Generally, theories not timely raised in the trial court “‘“cannot be asserted for the first time on appeal.”’” (Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 548.) Though we discuss the argument substantively, it is forfeited. 6 (1) a specific, identifiable property interest, (2) the plaintiff’s right to the property interest, and (3) the defendant’s acquisition or detention of the property interest by some wrongful act.” (Id. at p. 659.) We review questions of law de novo. (Reich v. Reich (2024) 105 Cal.App.5th 1282, 1288.) On appeal, the trial court’s ruling is presumed to be correct, and it is the appellant’s burden to affirmatively show error. (Starcevic v. Pentech Financial Services, Inc. (2021) 66 Cal.App.5th 365, 374.) Moretti contends she has a right to the proceeds from the cashier’s checks as the pay-on-death beneficiary of Pedro’s Chase accounts. Moretti does not dispute that the pay-on-death accounts were closed months before Pedro’s death, ceasing to exist. She nevertheless argues she has a right to the funds under sections 5302 and 5303. These sections are part of the California Multiple-Party Accounts Law (§ 5100 et seq.) governing pay-on- death accounts. We conclude these sections do not apply because the Chase accounts no longer existed when Pedro died. Section 5302 states in part, “Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent . . . .” (§ 5302, subd. (a).) As Moretti concedes, the proceeds were withdrawn from the accounts when Pedro’s accounts were closed. Because there were no sums remaining on deposit in the accounts at the time of Pedro’s death, section 5302 does not apply. Moretti also contends her right of survivorship was not validly revoked under section 5303, which governs the modification of terms of existing accounts. Section 5303, subdivision (c) provides that withdrawal of funds from the account by a party eliminates rights of survivorship as to the 7 funds withdrawn. Here, the undisputed facts are that after Chase informed Pedro the accounts were to be closed, he and Moretti went to a Chase bank where Moretti took the cashier’s checks issued to Pedro and gave them to him. Moretti cites no authority showing that this did not constitute a withdrawal from the relevant accounts by a party. In summary, both sections 5302 and 5303 make clear that it is the form of the account at the time of death of a party that determines how it is to be distributed. Moretti does not provide any authority holding that a right of survivorship or pay-on- death designation continues after an account is undisputedly closed. She does not show she had a right to the proceeds from the cashier’s checks. (Higgins, supra, 11 Cal.App.5th at p. 659.)6 Her claim to the proceeds of the checks fails as a matter of law. C. The Probate Court Did Not Err by Not Holding an Evidentiary Hearing Moretti argues the probate court erred by depriving her of the cashier’s checks and rental income held in cash without holding an evidentiary hearing. When the probate court asked Moretti what evidence she would present at such a hearing, she stated she would bring in a “bank expert,” a Chase bank manager, the attorney “who drafted the will,” and friends who could testify about Pedro’s intent to take care of Moretti. We are not persuaded that the probate court erred when it declined to hear from such witnesses. Section 1022 provides that “[a]n affidavit or verified petition shall be received as evidence when offered in an 6 In her opening brief, Moretti does not address the third condition for imposing a constructive trust. 8 uncontested proceeding.” When probate matters are “contested,” the probate court must hold an evidentiary hearing before determining the matter. (§ 1046; Dunlap v. Mayer (2021) 63 Cal.App.5th 419, 425–426.) Courts have held evidentiary hearings are required when factual disputes are material to the issues before the court. (See e.g., Estate of Bennett (2008) 163 Cal.App.4th 1303, 1309 [“factual conflicts presented by the parties’ competing declarations mandated an evidentiary hearing”]; Estate of Lensch (2009) 177 Cal.App.4th 667, 676–677 [where parties’ evidence raised a factual conflict as to whether son or mother died first, court erred in refusing to hold evidentiary hearing].) We review the court’s denial of a request for an evidentiary hearing for abuse of discretion. (Conservatorship of Farrant (2021) 67 Cal.App.5th 370, 377.) Moretti fails to show the probate court was required to hold an evidentiary hearing. She provided no legal basis for excluding the proceeds of the cashier’s checks or rental income from the probate estate. Because the court could decide the assets were part of the estate as a matter of law, there was no need to hear from witnesses on this topic. The same is true of witnesses who might testify about Pedro’s intent to take care of Moretti. Moretti did not raise any challenge to the terms of Pedro’s will. As the probate court stated, it had no obligation to conduct a “free-flowing” inquiry into Pedro’s desires when there was a valid, uncontested will clearly expressing how he intended to distribute his estate. Moretti does not show the court erred when it determined there were no material factual disputes to try. (Jackson v. Meyer (2026) 121 Cal.App.5th 960, 967.) 9  DISPOSITION The order is affirmed. Deborah is awarded costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS MORI, Acting P. J. We concur: TAMZARIAN, J. DAUM, J. 10