Safina v. Sorensen CA2/6 ( 2015 )


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  • Filed 12/1/15 Safina v. Sorensen CA2/6
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
    publication or ordered published for purposes of rule 8.1115.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 SIX
    WILLIAM SAFINA,                                                                 2d Civil No. B259237
    (Super. Ct. No. 1403000)
    Plaintiff and Appellant,                                                  (Santa Barbara County)
    v.
    LAWRENCE T. SORENSEN, as Trustee,
    etc.,
    Defendant and Respondent;
    GERALDINE FREEMAN,
    Real Party in Interest and Respondent.
    Michael Safina died. At the time of his death he was in a 48-year
    relationship with Geraldine Freeman whom he considered his wife in all but name.
    Two years after his burial, his surviving brother, William Safina,1 placed a
    headstone on the grave bearing the inscription "BELOVED BROTHER." Freeman
    had requested the inscription "OUR BELOVED MIKE." Unable to obtain an
    agreement on the inscription, Lawrence T. Sorensen, the trustee of Michael's trust,
    proposed that the headstone simply bear Michael's name along with the dates of his
    1
    To avoid confusion, we shall refer to Michael Safina and his siblings by their first
    names.
    birth and death. William, with whom Michael and Freeman had a contentious
    relationship, refused. Sorensen petitioned for an instruction to allow the
    modification. William objected, contending that Health and Safety Code section
    71002 controlled and gave him the power to make the decision. We affirm the trial
    court's order granting Sorensen's request.
    FACTS AND PROCEDURAL BACKGROUND
    Michael died on April 4, 2012. At that time, he had three living
    siblings, William, Abraham Safina and Bertha Berston. He had no surviving
    spouse, children or parents.
    Prior to his death, Michael amended his trust to disinherit William and
    Abraham and to name Freeman as the sole remainder beneficiary. William and
    Abraham filed a trust contest action to invalidate the amendment, among other
    things. That petition is pending along with four other actions involving Michael's
    estate. Sorensen is the temporary trustee of Michael's trust and the special executor
    of his estate.
    Michael was interred at Santa Barbara Cemetery. Consistent with
    Jewish custom, William and Abraham planned to place a headstone on Michael's
    grave a year after his death. They proposed to include the inscription "Our Beloved
    Brother," but Freeman wanted "Our Beloved Mike." Before an accord could be
    reached, Abraham died.
    Nearly two years after Michael's death, Sorensen sent an email to
    William's counsel, with Freeman's approval, proposing that they erect a headstone
    simply bearing Michael's name and the dates of birth and death. The next day,
    William unilaterally placed a headstone on the grave that included that information
    plus the inscription "BELOVED BROTHER" and a Masonic symbol. According to
    William, all three brothers were freemasons. Freeman, who visits the grave daily,
    objected to the stone. She claimed the inscription is an affront to her long-term
    2
    All statutory references are to the Health & Safety Code unless otherwise stated.
    2
    relationship with Michael, infringes on her rights as holder of his health care power
    of attorney and is contrary to the brothers' actual relationship.
    Sorensen again proposed to place "neutral" wording on the headstone,
    with the cost to be absorbed by the trust. William refused. He stated Abraham had
    wanted the "BELOVED BROTHER" language and he was honoring that request.
    To resolve the impasse, Sorensen petitioned the probate court for an instruction
    allowing him as trustee to modify the headstone to delete the inscription and
    Masonic symbol.3 Freeman joined in the petition.
    The parties disputed who had the right to dictate the content of the
    headstone. William claimed the right under section 7100 as Michael's surviving
    brother. Freeman claimed a higher priority right as the agent under a power of
    attorney Michael had signed related to his health care. William maintained that the
    inscription was made at Abraham's request. The probate court found that it was not
    "Abe's interests that would be the controlling interest here. It would be Michael.
    And all evidence is that Michael was somewhat at odds with his brothers at the time
    he passed away." The court ordered that "[t]he headstone . . . be changed to the
    headstone proposed by Mr. Sorensen. Michael Safina's Trust shall pay the cost."
    William moved to vacate the probate court's order. He argued that
    Freeman's power of attorney for health care was invalid because it was not
    notarized or witnessed and that only he, as the "'sole surviving competent adult
    sibling of decedent,'" had statutory authority to direct the content of Michael's
    headstone. (See § 7100, subd. (a)(5).) The court declined to change its ruling.
    Agreeing with Freeman's analysis, the court noted "this sort of situation is so
    unfortunate, and I believe it's the kind of situation that calls out for an equitable
    solution, and I think that's what I've done." William appeals.
    3
    Photographs of the current and proposed headstones are attached as Appendix A.
    3
    DISCUSSION
    Standard of Review
    An order on a petition for instructions is reviewed for an abuse of
    discretion. (Estate of Denton (1971) 
    17 Cal.App.3d 1070
    , 1075.) "The trial court's
    exercise of that discretion will be upheld if it is based on a reasoned judgment and
    complies with legal principles and policies appropriate to the case before the court.
    [Citation.] A reviewing court may not disturb the exercise of discretion by a trial
    court in the absence of a clear abuse thereof appearing in the record. [Citation.]
    The burden rests on the complaining party to demonstrate from the record that such
    an abuse has occurred. [Citation.]" (Forthmann v. Boyer (2002) 
    97 Cal.App.4th 977
    , 984-985.)
    Application of Section 7100
    Section 7100 "establishes . . . an orderly process by which to ensure
    that proper disposition is made of human remains." (Christensen v. Superior Court
    (1991) 
    54 Cal.3d 868
    , 896-897.) The statute, which is strictly construed, sets forth
    a hierarchy, in descending order, of nine categories of persons authorized to control
    the disposition of the remains. (§ 7100; Benbough Mortuary v. Barney (1961) 196
    Cal.App.2d.Supp. 861, 865.) The first and highest category is the holder of a power
    of attorney for health care. (§ 7100, subd. (a)(1).) This category is inapplicable
    here because Freeman's power of attorney for Michael's health care was not
    notarized or witnessed in accordance with the Probate Code. (See Prob. Code,
    § 4673, subd. (a)(3).) The second, third and fourth categories also are inapplicable.
    The fifth category, and the one relied upon by William, is "[t]he sole surviving
    competent adult sibling of the decedent or, if there is more than one surviving
    competent adult sibling of the decedent, the majority of the surviving competent
    adult siblings." (§ 7100, subd. (a)(5).) That provision further states that "less than
    the majority of the surviving competent adult siblings shall be vested with the rights
    and duties of this section if they have used reasonable efforts to notify all other
    surviving competent adult siblings of their instructions and are not aware of any
    4
    opposition to those instructions by the majority of all surviving competent adult
    siblings." (Ibid.)
    William contends that he, and only he, had the statutory authority to
    decide the content of Michael's headstone. The flaw in his argument is that he is
    not, as he originally claimed, "[t]he sole surviving competent adult sibling of the
    decedent." (§ 7100, subd. (a)(5).) As stated in Sorensen's petition, there were three
    surviving siblings at the time of Michael's of death. By the time William
    commissioned the headstone, Abraham had died and there were two surviving
    siblings – William and Bertha. Section 7100, subdivision (a)(5) states that where,
    as here, there is more than one surviving competent adult sibling, the majority of the
    surviving competent siblings must agree on the disposition of the remains, which
    includes "the location and conditions of interment, arrangements for funeral goods
    and services to be provided." (Id., subd. (a).) Assuming this language encompasses
    the selection of a headstone two years after the decedent's burial, nothing in the
    record relating to the petition suggests William obtained Bertha's agreement to the
    inscription or that he "used reasonable efforts to notify" her of his intention, as
    required by section 7100, subdivision (a)(5).
    Indeed, after William moved to vacate the probate court's order,
    Bertha submitted a declaration stating that she had "received a copy of the Trustee's
    Motion for Instructions Regarding the Headstone to place neutral language on my
    brother, Mike Safina's headstone, which I understand was granted by the Court, and
    which I fully support." (Italics added.) William objected to the declaration as
    untimely, but he can hardly complain about a declaration that was filed in direct
    response to his assertion that he is "'sole surviving competent adult sibling of
    decedent.'" Not only does the declaration refute that statement, but it also supports
    the probate court's implied finding that there was no agreement by a majority of the
    surviving siblings to erect the current headstone. Thus, on the record presented,
    William has not shown that his decision to choose the content of the headstone was
    authorized under section 7100, subdivision (a)(5).
    5
    Further, it is not clear that section 7100 applies to the facts of this
    case. The decision to commission the headstone was made almost two years after
    Michael was interred. Section 7100, subdivision (a) states that disposition of the
    remains includes "the location and conditions of interment, and arrangements for
    funeral goods and services to be provided . . . ." William cites no authority
    suggesting that erecting a headstone a significant period of time after the decedent's
    burial is part of a condition of interment or an arrangement for funeral goods. In
    fact, in his response to Sorensen's petition, William asserted just the opposite. He
    opined that even if Freeman's health care power of attorney was valid, her argument
    that "[s]ection 7100 give[s] its holder authority over the headstone inscription at
    this late date requires stretching the meaning of the statute far beyond its plain
    words. . . . Disposition of the remains of a deceased person can only mean deciding
    how that person should be buried. Here, [Michael] was buried over two years ago
    . . . ." (See, e.g., Maffei v. Woodland Memorial Park (2005) 
    130 Cal.App.4th 119
    ,
    129 [section 7100 establishes precedence in determining initial disposition of
    remains].)
    In the absence of clear governing authority on the issue, Sorensen
    appropriately petitioned the probate court for an instruction regarding the
    headstone's content. The probate court, as a court of general jurisdiction, enjoys
    "broad equitable powers" to decide such matters. (Estate of Kraus (2010) 
    184 Cal.App.4th 103
    , 114 ["The probate court may apply general equitable principles in
    fashioning remedies and granting relief"]; see In re Malgor's Estate (1947) 
    77 Cal.App.2d 535
    , 536-538; In re Seymour (1911) 
    15 Cal.App. 287
    , 293-294
    [executors petitioned for instructions to purchase decedent's final resting place].)
    Here, the court was faced with a disagreement between Michael's long-time
    companion, who is the beneficiary of his trust, and his remaining brother, with
    whom he had a troubled relationship. Sorensen proposed, as a reasonable
    compromise, that the headstone be modified at trust expense to delete the contested
    inscription and symbol. The remaining content is "neutral," favoring neither party,
    6
    and was endorsed not only by Freeman, but also by Michael's other remaining
    sibling. William has not shown that the court's adoption of this compromise was
    arbitrary or unreasonable under the circumstances.
    DISPOSITION
    The judgment (order granting trustee's petition for instructions) is
    affirmed. Respondent Freeman shall recover her costs on appeal.
    NOT TO BE PUBLISHED.
    PERREN, J.
    We concur:
    GILBERT, P. J.
    YEGAN, J.
    7
    APPENDIX A
    Colleen K. Sterne, Judge
    Superior Court County of Santa Barbara
    ______________________________
    Allen & Kimbell, LLP, John H. Parke, James M. Sweeney for
    Plaintiff and Appellant.
    No appearance for Defendant and Respondent Lawrence T. Sorensen.
    James P. Ballantine for Real Party in Interest and Respondent
    Geraldine L. Freeman.
    

Document Info

Docket Number: B259237

Filed Date: 12/1/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021