Estate of Estella Lovera

Proc., 437c,

1 Because some of the individuals involved in this case share the same last name, they will be referred to by their first names. No disrespect is intended. 2 Alejandra contends that she had a close, parent-child-like relationship with Decedent. 3 All further undesignated statutory references are to the Code of Civil Procedure. 1

subd. (c); Aguilar, supra, at p. 843.) The object of the summary judgment procedure is “to cut through the parties pleading” to determine whether trial is necessary to resolve the dispute. (Aguilar, supra, at p. 843.) “A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.

Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ.

Proc., § 437c, subd. (p)(2).) “A defendant seeking summary judgment must show that at least one element of the cause of action cannot be established, or that there is a complete defense to the cause of action...The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72, internal citations omitted; emphasis added.) If the moving party makes the necessary initial showing, the burden of production shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Code of Civ.

Proc., 437c, subd. (c); Aguilar, supra, 25 Cal.4th at p. 850.) A triable issue of material fact exists “if, and only if, the evidence would allow of reasonable trier of fact to find the underlying facts in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850, fn. omitted.) If the party opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 843.) “Summary adjudication works the same way, except it acts on specific causes of action or affirmative defenses, rather than on the entire complaint. (§ 437c, subd. (f).)

A summary adjudication is properly granted only if a motion therefor completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (§ 437c, subd. (f)(1).)

Motions for summary adjudication proceed in all procedural respects as a motion for summary judgment. (§ 437c, subd. (f)(2).)” (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 464.) Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.) II. Merits of the Motion Ramon seeks summary judgment on the grounds that the purported will does not comply with the formalities required of either an attested will or a holographic will and the harmless error rule is unavailable.

Accordingly, he contends there is no basis to probate the will. “The traditional method for making a valid will is that specified in Probate Code section 6110: a written instrument is signed by the maker of the will or testator, and witnessed by two witnesses who are present when the testator signs or acknowledges his signature.” (Estate of Brenner (1999) 76 Cal.App.4th 1298, 1301 (Brenner).) “Probate Code section 6111 provides an exception to the foregoing formalities, and makes valid a ‘holographic’ or handwritten will ‘if the signature and the material provisions are in the handwriting of the testator.’ ‘Holographic’ means simply a document wholly written by the hand of its author. [Citation.]” (Ibid.)

Here, the purported will is handwritten. It states, I Stella being of sound mind and body do here by give everything I have to Alejandra Ruiz, my home, my car, and my money. She will know what to do with it We have already talked I don’t know if this is a will. but I hope it could be. Stella Lovera 8/25/23 6:31 pm (See Alejandra’s Response to Ramon’s Separate Statement of Undisputed Material Fact (“UMF”), No. 4.) It is undisputed that the will was handwritten by Alejandra. (See UMF, No. 5.) Thus, it does not qualify as a holographic will pursuant to Probate Code section 6111, subdivision (a), which requires the material provisions of a holographic will to be in the

testator’s handwriting. No attesting witnesses signed the purported will and thus, it does not qualify as an attested will under Probate Code section 6110, subdivision (c)(1), which states, “Except as provided in paragraph (2), the will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator’s will.”

Alejandra does not dispute the above. Instead, she contends that the purported will falls under the harmless error provision of Probate Code section 6100, subdivision (c)(2), which states, “If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.”

Citing Estate of Boyajian (2025) 112 Cal.App.5th 843 (Boyajian), Ramon maintains California has not fully adopted the Uniform Probate Code’s harmless error doctrine. But, Ramon misstates the import of that statement in Boyajian. In Boyajian, the Court of Appeal faced the issue of whether a document purporting to revoke a will met the required formalities for revocation. In that context, the court explained, Probate Code “[s]ection 6110, subdivision (c)(2) . . . was added in 2008 (Stats. 2008, ch. 53, § 1, p. 180), presumably in response to the Supreme Court’s recognition that California had not yet ‘adopted a “harmless error” provision similar to Uniform Probate Code section 2-503.’ (Estate of Saueressig (2006) 38 Cal.4th 1045, 1053.)

To be sure, the 2008 amendment gives effect to an unwitnessed will ‘if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.’ ([Prob. Code,] § 6110, subd. (c)(2).) But critically, the 2008 amendment stops short of adopting the full harmless error provision of the Uniform Probate Code. [¶] Omitted from section 6110, subdivision (c)(2) is the portion of the Uniform Probate Code that would give effect to the decedent’s intent concerning ‘a partial or complete revocation of the will.’ (8 West’s U.

Laws Ann. (2023) U. Prob. Code (2019) § 2-503, subd. (2), p. 129.) We conclude the omission was intentional, reflecting the Legislature’s judgment that witness formalities are still required to turn a stand-

alone revocation into a will.” (Boyajian, supra, 112 Cal.App.5th at p. 852, fn. omitted, italics added.) Here, no prior wills have been proffered and there is no issue of revocation. As explicitly stated in the portion of Boyajian italicized above, the 2008 amendment to Probate Code section 6110 explicitly adopted the portion of the Uniform Probate Code Alejandra relies on, namely, what has been codified as Probate Code section 6110, subdivision (c)(2). Thus, the fact that the full text of Uniform Probate Code section 2-503 has not been adopted is of no apparent relevance to this case.

Thus, if the purported will was not signed by two attesting witnesses, it may still be a valid will if Alejandra can establish by clear and convincing evidence that, at the time Decedent signed it, she intended it to be a will. (Prob. Code, § 6110, subd. (c)(2).) Ramon contends that the “equivocal language (‘I don’t know if this is a will’), the circumstances of its creation (unwitnessed and written in Alejandra’s handwriting), and its disinheritance of the natural objects of Estella’s bounty (her husband Ramon and their Children) preclude a showing, let alone by clear and convincing evidence, that Estella intended this writing to operate as her will at the time of signing.” (Motion, p. 4:22-26.) “No particular words are required to create a will. [Citation.]

But every will must contain operative words legally sufficient to create a devise of property. [Citation.]” (Estate of Wong (1995) 40 Cal.App.4th 1198, 1208 (Wong).) “The entire purpose of a will is to express the decedent’s wishes for disposition of his or her property after death. If there are insufficient words in the document to do that, or if there are no words at all but ambiguous symbols, the decedent has failed in his or her purpose even if decedent did intend to write a will.” (Id. at p. 1209.) “Testamentary intent may be found when the decedent uses words indicating a transfer of specified property upon the death of the testator. [Citation.]

But when the document itself does not express an intention to convey property upon death, it does not exhibit the intent necessary for a will. [Citation.]” (Id. at p. 1207.) “Extrinsic evidence is admissible to determine whether a document constitutes a will pursuant to Section 6110 or 6111, or to determine the meaning of a will or a portion of a will if the meaning is unclear.” (Prob. Code, § 6111.5; see also Estate of Duke (2015) 61 Cal.4th 871,

888 [“Extrinsic evidence is admissible not only to aid in the construction of a will, but also to determine whether a document was intended to be a will. [Citations.]”].) “If it is not completely clear that the document evidences testamentary intent, it is possible to resort to extrinsic evidence of the surrounding circumstances in order to provide it.” (Wong, supra, 40 Cal.App.4th at p. 1205.) “[W]hat makes a document ‘testamentary’ is the revocable disposition of property upon death: “Before an instrument may be probated as a will it must appear from its terms ... that it was executed with testamentary intent.

The testator must have intended, by the particular instrument offered for probate, to make a revocable disposition of his property to take effect upon his death.’ [Citation.]” (Boyajian, supra, 112 Cal.App.5th at p. 851.) “In applying the exception set forth in [Probate Code] section 6110, subdivision (c)(2), that focuses on whether there is clear and convincing evidence that the drafter ‘intended the [document] to constitute the [drafter’s] will,’ the probate court’s task is to examine whether the drafter ‘must have intended, by the particular instrument offered for probate, to make a revocable disposition of h[er] property to take effect upon h[er] death.’ [Citations.]

In assessing ‘ “ ‘ “whether [an] instrument ... was intended to be testamentary,” ’ ” ’ the probate court is to look to (1) the words in the document itself, and (2) the ‘circumstances’ ‘surrounding’ its creation and execution. [Citation.] When it comes to the words used, ‘[n]o particular words are necessary to show a testamentary intent’ [citations], but words referring to the drafter’s potential death tend to indicate such an intent [citation]. When it comes to the surrounding circumstances, courts may examine, among other things, (1) whether the document was drafted at a time when death was near (or nearer than usual) or whether other ‘extreme circumstances’ exist, as persons drafting documents at such times are more likely to be acting with testamentary intent [citations]; and (2) whether the drafter has retained the document, as persons are more likely to retain documents that were meant to have lasting effect [citation].” (Estate of Berger (2023) 91 Cal.App.5th 1293, 1303-1304 (Berger).) “[O]ur Legislature specifically enacted the exception that authorizes a probate court to give effect to a defectively drafted will when the drafter’s intent to do so is particularly compelling as a means of deeming ‘harmless’ ‘the commission of drafting errors or improper

interpretations of instructions for form wills’ in the hope that such a ‘harmless error rule’ would ‘reduce the number of wills thrown out of court, increase the number that are actually probated, and reduce potential litigation.’ (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2248 (2007–2008 Reg. Sess.) as amended Mar. 24, 2008, pp. 4, 5, archived at <https://perma.cc/DE5B-796H> [as of May 25, 2023].)” (Berger, supra, 91 Cal.App.5th at pp. 1302-1303.) In Estate of Spitzer (1925) 196 Cal. 301, 305-306 (Spitzer), the testator fell ill and wrote his brother a letter regarding the property he wanted to go to his wife and daughter.

The letter read as follows: Pasadena Cal -- Aug 4 23 Dear Bro Sherman As I am not able to sit up very long but am better than last week will write you a few lines and send you this Deed of Lewis and Lulu also to say that I deeded Sarah W. S. this homeplace 1661 N Raymond before I was sick worth 7000.00 and as she has my Insurance of 3000.00 also I owe her a note of 4000.00 borrowed and as the Bal is in Abingdon and Pasadena the above amount 7000+3000 = 10000.00 is more than 1/2 have made since we were married.

Bal of estate to go to Lulu M Plane. I guess that is California law as to her amt. You can fix things if anything happens All papers here are in State Bank of Pasadena. Yours truly A. J. Spitzer.

(Spitzer, supra, 196 Cal. at pp. 303-304, internal quotation marks omitted.) The California Supreme Court held that the language of the letter coupled with extrinsic evidence sufficiently expressed testamentary intent. (Id. at p. 308.) The Spitzer court acknowledged “[t]he opening sentences of the paper offered for probate are much after the fashion of an ordinary letter-writer. That which follows, however, bears the impress of something more than the usual letter written by one brother to another.

It will be remembered that decedent was then past seventy years of age and had been an invalid for several years. His physical strength was waning and he knew that permanent recovery was not to be expected. His entire thought was upon the disposition that he was about to make of his property. He inclosed a deed of the Illinois property which was to form part of his estate to be administered upon thereafter.” (Spitzer, supra, 196 Cal. at p. 306.) Further, the testator had

discussed the terms of his favored testamentary disposition with his brother and the fact that he would be sending the will to his brother with his brother and a neighbor. (Id. at pp. 304-305.) In In re Moore’s Estate (1951) 102 Cal.App.2d 672 (Moore), the probate court refused to accept for probate “a sheet of paper in the handwriting of the deceased upon which was written: ‘Everything that is mine, both personal and real, I leave to my mother, Garnette. Money in Bank of America from my father’s estate and all other things left to me. (Signed) Mary Ellen Moore.’” (Id. at p. 672.)

No appeal was taken from the probate court’s order. (Ibid.) Three weeks later, however, a note was found on a piece of tissue paper wrapped around a ring stating, “ ‘July 4, 1948 Mother Here is my ring. I leave you this and all that is mine. Mike is provided for. Dont grieve for me. I love you. I’ll leave a Will. (Signed) Mary Ellen.’ ” (Id. at p. 673.) That note was admitted to probate as a holographic will. (Ibid.) The Court of Appeal reversed. It explained that other than the information regarding the first sheet of paper described above and the facts surrounding how the documents were found, no extrinsic evidence was presented. (Moore, supra, 102 Cal.App.2d at p. 673.)

It stated the rule that “[t]o be a will, the instrument offered for probate must have been executed with testamentary intent and it must be shown that by that very paper itself she intended to make a disposition of her property.” (Ibid.) The Court of Appeal reasoned “The language of the decedent ‘I’ll leave a Will’ was clear and unambiguous. It negatives any idea that she considered the letter to her mother to be a will. On the contrary it shows that some other writing yet to be made would be her will.

The fact that the undated paper was written in an attempt to make a will is corroborative of this construction.” (Id. at pp. 674-675.) In Berger, on which Alejandra relies, the decedent, Melanie, left a letter stating, in part, ‘“I, Melanie Perry Berger, with sound mind and excellent health, name Maria L. [Coronado], [lists Maria’s then-current address], as my sole beneficiary in the event of my death. She will take ownership of all my personal possessions and property located at [address of Melanie's house in Pasadena].

She will make the sole determinations as to what she will keep, and what personal belongings that may, or may not, be distributed to any inquiring family members. She will also receive, and have full discretion of: [certain named property] [¶] It should be noted that I would prefer to have some of the above Thrift assets set aside for the education of

[Maria's] three daughters, [naming each]. This is, however, only a suggestion, and Maria ... shall have the final decision on these matters.’ The letter closes with ‘Sign[ed] and dated 8-16- 02 in Pasadena, California,’ and beneath it, Melanie's signature.” (Berger, supra, 91 Cal.App.5th at p. 1299.) The Berger court held that the above language, coupled with the surrounding circumstances compel the finding that Melanie intended the document to be her will as a matter of law. (Berger, supra, 91 Cal.App.5th at p. 1307.)

The court explained, “[t]he substance of the letter names Maria as Melanie’s ‘sole beneficiary in the event of [her] death’ as well as the person who has ‘full discretion’ to dispose of ‘all [of her] personal possessions and property’; lists four of Melanie’s most significant assets (namely, her house, her retirement account, her car, and her checking account). . . . The format of the letter also evinces a level of formality consistent with a document meant to have enduring effect: Melanie drafted the letter on her work stationery; recited her full name, address, and Social Security number; addressed it ‘[t]o whom it may concern’; started the letter with a recitation of her ‘sound mind and excellent health’; and concluded the letter with a recitation of the date and location of signing as well as her signature.

The surrounding circumstances further—and, in our view, conclusively— confirm Melanie’s intent ‘to make a revocable disposition of [her] property to take effect upon [her] death.’ [Citation.] Melanie told Maria—the ‘sole beneficiary’ and effective executor of the will—that Melanie was executing a ‘will’ and Melanie did so in an e-mail sent on the very same day she created and executed the letter. What is more, Melanie on that date was days away from having major surgery, and hence wrote the letter at a moment in time when she was more acutely facing her own mortality.

Melanie also treated the letter like a will insofar as she gave Maria (again, the sole beneficiary and executor of the will) a copy of the letter and kept the original for herself in a place where it was likely to be found—and was, indeed, found— decades later.” (Id. at pp. 1307-1308.) In Estate of Stoker (2011) 193 Cal.App.4th 236 (Stoker), on which Alejandra also relies, the purported will read: “ ‘To Whom It May Concern: [¶] I, Steve Stoker revoke my 1997 trust as of August 28, 2005. Destiny Gularte and Judy Stoker to get nothing.

Everything is to go to my kids Darin [sic] and Danene [sic] Stoker. Darin [sic] and Danene [sic] are to

have power of attorney over everything I own.’ ” (Id. at pp. 239-240.) The Court of Appeal found that the decedent’s testamentary intent was “evident” from the purported will. (Id. at p. 244.) Even if the purported will was ambiguous, the Court of Appeal held that the trial court properly admitted extrinsic evidence, including that a friend of the decedent’s testified that the decedent had dictated the will to her and he signed it in front of her and another friend testified that he saw the decedent sign the will. (Id. at pp. 240, 244.)

Here, Ramon contends that the portion of the purported will stating, “I don’t know if this is a will. but I hope it could be” renders any testamentary intent ambiguous. The court disagrees. The sentiment that Decedent hoped the purported will could be a will supports a finding that Decedent intended the document to be a will. Additionally, the will contains instructions for the distribution of Decedent’s property: “here by give everything I have to Alejandra Ruiz, my home, my car, and my money.”

Further, the recitation “being of sound mind and body” suggests an attempt at formal language that may be generally included in a will. (See Berger, supra, 91 Cal.App.5th at p. 1308.) While the language of the purported will may not be as obviously testamentary as in Berger and Stoker, extrinsic evidence also supports a finding that Decedent intended the purported will to be her will. Alejandra proffers her own declaration and the declaration of Decedent’s sister, Josefina Mejia Salas (“Josefina”), which speak to the circumstances surrounding the execution of the purported will.

Alejandra declares that, on August 25, 2023, the date the purported will was signed, she was at Decedent’s house and Decedent asked her to write down what Decedent dictated. (Declaration of Alejandra Ruiz in Support of Opposition to Motion, ¶ 5.) Alejandra wrote down the words Decedent said and did not “add any words or make any suggestions[.]” (Ibid.)4 Decedent read and signed the purported will in front of Alejandra. (Id. at ¶ 6.) Josefina declares, “I have direct knowledge of the relationship between Alejandra and Stella.

Stella would always tell me how much she loved Alejandra. Alejandra was always very loving and caring toward Stella and would do anything for her.” (Declaration

4 Ramon has filed evidentiary objections to Alejandra’s declaration. He objects to paragraph 5 but not to the portions discussed herein. The court declines to rule on Ramon’s objections to Alejandra’s declaration as they are immaterial to the outcome of the instant motion. (See § 437c, subd. (q).)

of Josefina Mejias Salas in Support of Opposition to Motion (“Josefina Decl.”), ¶ 9.)5 She also declares that Decedent raised Alejandra and loved her like her own daughter. (Id. at ¶ 8.)6 Josefina also states that she was present at Decedent’s house on August 25, 2023 and that within an hour after the purported will was signed, she and Decedent sat down together and reviewed the purported will. (Id. at ¶ 14.) Decedent acknowledged her signature on the documents and the contents of the purported will. (Ibid.)7 Josefina further declares that, in August 2023, Decedent told her that Ramon asked for a divorce and she wanted to disinherit Ramon and her sons because they had treated Decedent poorly so she wanted to “update her Will so that Alejandra could have her house[.]” (Id. at ¶ 13.)

Ramon objects to this testimony as inadmissible hearsay. The court overrules this objection and finds that the statements are admissible pursuant to Evidence Code section 1250.8 Notably, the statements are not admissible for their truth but to explain Decedent’s state of mind at the time she executed the purported will. (See Estate of Truckenmiller (1979) 97 Cal.App.3d 326, 331.) The extrinsic evidence is sufficient to support a finding that the purported will was intended to be Decedent’s will in light of the cases discussed above. “In the cases in which it is a little bit doubtful whether the proffered document is a will, we often have the express statement of the decedent, made shortly before death, that decedent has written his or her will and provided for decedent’s loved ones in a certain letter or in a certain document.

Clearly such direct extrinsic evidence is extremely probative on the question of whether a document is a will.” (See Wong, supra, 40 Cal.App.4th at pp. 1207-1208.) Here,

5 Ramon has also filed evidentiary objections to Josefina’s declaration. He objects to paragraph 9 but it appears that his inadmissible speculation and improper opinion/legal conclusion objections target other portions of paragraph 9 that the court does not rely on. To the extent these objections or Ramon’s Evidence Code section 352 objection are meant to target this portion of paragraph 9, they are overruled. 6 Ramon objects to paragraph 8 of the declaration but he does not object to the portion discussed by the court. 7 Again, Ramon objects to paragraph 14 of the declaration but he does not appear to object to the portion discussed by the court.

The court declines to rule on Ramon’s remaining evidentiary objections as it finds 8

them immaterial to the outcome of the motion. (§ 437c, subd. (q).) 11

Decedent’s acknowledgement of her signature and the contents of the will is a similar statement further evidencing her desire that the purported will was meant to be her will. Citing Estate of Ben-Ali (2013) 216 Cal.App.4th 1026 (Ben-Ali), Ramon contends that the circumstances surrounding the execution of the purported will, including that the purported will was drafted by a beneficiary and the lack of subscribing witnesses preclude a finding that the harmless error rule in Probate Code section 6110, subdivision (c)(2) applies.

Ben-Ali is clearly distinguishable. In that case, unlike in this one, no witness in the case knew about the will, there was no evidence the decedent had mentioned his testamentary intentions to anyone, and no evidence was presented as to who might have prepared the typewritten will, and no original copy was found among the decedent’s belongings. (Id. at p. 1037.) Instead, the will was found among the belongings of the decedent’s father, “a man willing to go to extremes of fraud and dishonesty in order to protect his financial interests and, in particular, to retain control of the Ashby property—which was both his residence and a major source of his income.

Before taking his own life, [the father] had hidden his son's body behind a wall, perpetrated a callous fraud on [the decedent’s] mother, spouse, and friends about [the decedent’s] fate, and had impersonated [the decedent] and forged his name to multiple documents, all apparently for financial reasons connected to the property.” (Id. at pp. 1037- 1038.) The court stated that the only real evidence” of the decedent’s intent to make a will was his signature on the document, which was “primarily authenticated” by a document examiner who was not informed of the above circumstances. (Id. at p. 1038.)

The Court of Appeal concluded that in light of the many unusual events surrounding the document, and the paucity of evidence [the decedent] had discussed his testamentary intent with others, [it did] not believe a reasonable fact finder could conclude those facts were proven by clear and convincing evidence.” (Ibid.) Here, far from the “unusual” circumstances surrounding the alleged execution and discovery of the will in Ben-Ali, there is significant evidence that Decedent intended the purported will to be her will as discussed above.

Alejandra has raised a triable issue of material fact as to whether the purported will was intended by Decedent to be her will. This precludes both a grant of summary judgment and a

grant of Ramon’s alternative request for summary adjudication on the issue of whether the purported will should be admitted to probate. CONCLUSION.The motion for summary judgment or, in the alternative, summary adjudication is DENIED.

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