Estate of El Wardani ( 2022 )

Filed 8/31/22
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
Estate of RAMSEY WALTER EL
WARDANI, Deceased.
JANINE WHITE EL WARDANI, D079406
Petitioner and Appellant,
v. (Super. Ct. No. 37-2017-00031536-
PR-LA-CTL)
ALEXANDRIA EL WARDANI, as
Administrator, etc.,
Objector and Respondent.
APPEAL from an order of the Superior Court of San Diego County,
John B. Scherling, Judge. Affirmed.
James Michael Hester for Petitioner and Appellant.
Chhokar Law Group, Kimberley Victoria Deede and Gian Ducic-
Montoya for Objector and Respondent.
Ramsey Walter El Wardani died intestate in 2016 and was survived by
his wife Janine and daughter from a previous marriage, Alexandria (Ali).1
Four years into a protracted probate dispute between Janine and Ali, the
court removed Janine as court-appointed administrator of Ramsey’s estate.
It deemed her ineligible to serve in that role because it found that she was
not a United States (U.S.) resident as required by section 8402, subdivision
(a)(4) of the Probate Code.2
Emphasizing her numerous ties to California, Janine appeals her
removal as administrator of her deceased husband’s estate. But as we
explain, the court reasonably rejected her claim to U.S. residency despite
those ties. Janine sold her home in California and moved with Ramsey to
Mexico in 2014 intending to retire there. She remained in Mexico “full time”
for two years until Ramsey’s death. Although she returned to California for
visits thereafter, she did not relocate or plan to move back to the U.S. until
the probate case was over. On these facts, the court reasonably found that
she was not a U.S. resident within the meaning of section 8402 and did not
abuse its discretion in removing Janine as administrator. Accordingly, we
affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
A year after Ramsey died intestate in August 2016, Janine petitioned
for letters of administration. She checked the box on mandatory Judicial
Council form (DE-111) indicating that she was a California resident and
listing a P.O. Box in Bonsall as her address. Claiming Ramsey had
1 Because all parties in this action share a common last name, we refer
to them by first name for clarity, intending no disrespect.
2 Further undesignated statutory references are to the Probate Code.
2
misappropriated her separate property, Janine also filed a $285,000 creditor’s
claim.
In December 2017, the probate court appointed Janine as
administrator with limited authority to administer the estate. Janine was
required to post a $250,000 bond and could not sell, exchange, or encumber
estate property. Janine filed a partial inventory and appraisal in December
2018 listing a 50 percent community property stake in five condominiums she
and Ramsey owned and rented as landlords.
Janine’s letters of administration expired in June 2019 pursuant to a
local rule (Super. Ct. San Diego County, Local Rules, rule 4.8.1(A)). Three
months after her letters of administration expired, Janine allowed her own
creditor’s claim, purporting to be the estate’s personal representative. Her
attached creditor’s declaration claimed $281,867 from Ramsey’s estate.
Janine claimed that only after his death did she discover that Ramsey lived a
double life, misappropriating her separate property assets.
This 2019 declaration contained several factual allegations that would
later be used by the court to reject her U.S. residency. Janine explained that
she married Ramsey in 2009 and lived in Carlsbad. Ramsey managed the
couple’s finances, although each maintained separate property assets from
before their marriage. Ramsey wanted to retire in Mexico to live a quieter
life, and the couple began searching for properties in Baja California Sur.
Janine sold her separate property home in Carlsbad to facilitate their move.
She purchased a home in Baja California Sur, Mexico using proceeds from
the Carlsbad sale. Janine moved in October 2014 “and lived in that home full
time.” Over the next two years, Ramsey left her in Mexico alone for up to a
month at a time while allegedly using proceeds from her Carlsbad residence
“like his own personal bank account.” All the while, Janine “was setting up
3
the home in Baja, trusting that [her] ‘nest egg’ was safe.” Janine referenced
the couple’s “condo rental business” in passing but did not mention any
residence outside the one in Mexico.
The trial court approved Janine’s creditor’s claim for $281,867 in
November. Ali moved to set that order aside, and the court granted her
request in January 2020. It noted that Janine’s letters of administration had
expired when she purported to allow her own creditor’s claim. Mistakenly
believing Janine still had authority as administrator, the court erred in
approving that claim. Compounding this error, Janine failed to serve notice
of the hearing on Ali or any other heir, meaning the court allowed her
creditor’s claim without hearing from any heir or an authorized personal
representative. The court cautioned Janine that her letters of administration
had expired and that reissuance was “not a foregone conclusion.”
After the set aside ruling, Janine filed a document captioned, “First
Annual Report and Status of Administration; Request to Allow Ongoing
Administration of this Estate; and Request for Extension of Letters of
Administration.” Janine explained that she needed additional time to
determine the character of the five rental properties and identify other assets
and personal property subject to probate. Acknowledging the delay, Janine
explained that estate administration had revealed “financial
misappropriations, concealed assets and questionable trusts, unknown
creditors and income tax potential liability going as far back as 2009”—all of
which “has made the administration challenging and time consuming.” She
hoped to render an accounting and conclude her administration within a
year. Accordingly, she asked the court to extend her letters of administration
through July 2021.
4
The hearing on Janine’s request was repeatedly continued. Citing her
shortcoming in estate administration, Ali asked the court not to reissue
Janine’s letters and instead appoint Ali as administrator. The parties
appeared before Judge Scherling on June 11, 2021 on Janine’s petition for
reissued letters and Ali’s competing petition for letters. Following an
unreported hearing, the court requested supplemental briefing on the issue of
Janine’s residency.3 Pursuant to section 8402, subdivision (a)(4), only U.S.
residents are competent to serve as personal representative of an estate
unless named as executor in a will.
In her supplemental brief, Ali argued that residency was “synonymous
with domicile” for purposes of the Probate Code. Although Ali had been
under the impression that she lived in Bonsall, California, Janine informed
the court at the June 11 hearing that she had never lived there and that the
address provided was her brother’s. Summarizing testimony offered at the
June 11 hearing and Janine’s past declarations, Ali maintained that Janine
resided in Mexico and was statutorily barred from serving as estate
administrator.
Citing taxation cases construing state residency, Janine reasoned that
residency means the place a person is most closely connected to. She filed a
declaration describing her many ties with the U.S. While she owned a home
in Mexico, she was not a citizen there and had no intention of becoming a
citizen or Mexican resident. She grew up in California; all her friends and
both her children lived there, as did her extended family. She had a
California driver’s license, voted and paid income taxes in California and filed
3 Without a record of proceedings, we cannot be certain what transpired.
Janine argues on appeal that the court was poised to deny Ali’s petition for
letters until her counsel made a statement to the effect that Janine was not a
U.S. resident.
5
federal income taxes in the U.S. Her bank accounts were in San Diego, and
she had not opened any accounts in Mexico. Her medical providers,
accountant, and attorneys were all in California. Since 2016, Janine received
mail solely through a P.O. Box in California and did not receive mail in
Mexico. According to Janine, the only reason she stayed in Mexico was
because she owned a house there free and clear where she could live
inexpensively. Claiming Ramsey’s actions placed her “in a state of financial
limbo” since his death, she stated she would sell her home in Mexico and
return to the U.S. as soon as the probate case ended.
Ali filed a responsive supplemental brief. She noted that Janine’s
September 2019 declaration supporting her creditor’s claim confirmed her
Mexico residency. It was only when faced with disqualification that Janine
took the position that she resided in California. Ali argued that Janine’s
reliance on taxation cases was misplaced given case authority interpreting
residency synonymously with domicile under the Probate Code. Whatever
her California ties, Ali stressed that Janine had resided in her Mexico home
since 2014 and only intended to return to California once probate proceedings
ended.
The court considered the two motions together on August 9, 2021—
Janine’s request to continue as administrator and Ali’s request to be
appointed administrator.4 Before the hearing, the parties stipulated that
both petitions could be resolved based on the declarations of record, with no
new declarations filed. At the start of the hearing, the court delivered its
4 Although Janine’s letters of administration had expired pursuant to a
local rule, the court had held that she remained administrator of the estate
pursuant to the Probate Code. Expiration of the letters merely suspended
Janine’s authority, meaning there was no vacancy in the office of the
administrator unless Janine was first removed.
6
tentative ruling removing Janine as administrator. The written tentative
raised questions as to whether Janine had ever lived in Bonsall as she had
claimed.
Arguing against the tentative, Janine highlighted her California ties.
Although the couple planned to move to Mexico to retire, Ramsey never
actually retired and lived a double life in San Diego. Janine planned to
return after he died once the probate case concluded and never expected the
case to go on for four years. According to Janine, the mere fact that she slept
in Mexico more nights than she did in the U.S. did not change her place of
residence. It was Janine’s position that she had never left California. She
maintained her bank accounts, investment property, and driver’s license in
California and intended to return as soon as the probate case ended. To the
extent the court entertained doubts as to whether Janine had ever lived in
Bonsall as indicated in prior filings, Janine could testify on that issue.
Ali’s counsel urged the court to confirm its tentative ruling. She
reasoned that Janine’s “change in intention, based on a change of
circumstances, does not change where one lives and one has moved to and
where one owns a home.” Counsel further suggested that the probate case
had dragged on because of Janine’s shortcomings and delays as
administrator. No new testimony was warranted given the parties’
stipulation to decide the matter on declarations; nor would it affect the
outcome. Ali argued that Janine owned a home in Mexico and lived there for
years, making her a Mexican resident for purposes of probate proceedings.
Agreeing with Ali, the court modified the tentative ruling only slightly,
omitting credibility questions concerning Janine’s alleged prior residence in
Bonsall. It viewed Janine’s 2019 creditor’s declaration as more credible than
her more recent declaration on residency. But even in the more recent
7
declaration, Janine stated, “As soon as the case is over, I will sell my home in
Mexico and return to live permanently in the United States.” Based on this
statement, the court inferred that Janine had no intention of living in the
U.S. during the administration of the estate. Concluding Janine was not a
U.S. resident competent to serve as administrator under section 8402, it
removed her. And with the position now vacant, the court proceeded to
appoint Ali as administrator with limited authority, requiring her to post
bond.
A more detailed ruling followed in the court’s written order. It began
by acknowledging that as the party seeking her removal, Ali bore the burden
of proving grounds for removing Janine as administrator. (See Estate of Sapp
(2019) 36 Cal.App.5th 86, 103 (Sapp).) Noting that section 8402, subdivision
(a)(4) required that an administrator be a “resident of the United States,” the
court turned to case law to construe that phrase. More recent cases were not
helpful because nonresidency was conceded. (See Estate of Heath (2008) 166
Cal.App.4th 396, 401 (Heath) [stating in passing that decedent’s German
sisters were “ineligible for appointment as administrators because they [did]
not reside in the United States”]; Estate of Damskog (1991) 1 Cal.App.4th 78,
81 (Damskog) [decedent’s Norwegian sisters were not entitled to appointment
as administrator themselves and therefore could not nominate an
administrator].) Accordingly, the court turned to much older cases that
construed a prior version of the statute requiring California residency.
Although residence is not necessarily synonymous with domicile (see Smith v.
Smith (1955) 45 Cal.2d 235, 239 (Smith)), these cases seemed to equate the
two in the probate administration context.5
5 To avoid repetition, we explore cases cited by the probate court in our
discussion.
8
The court reasoned that “resident of the United States” under section
8402 was either synonymous with domicile or permitted something more
temporary. Under either construction, it believed by a preponderance of the
evidence that Janine was not a resident. The court deemed Janine’s 2019
declaration “more reliable [than] her [more recent] declaration regarding
residency” because her residency was not then at issue. It went on to
conclude:
“Based on the declaration in support of the creditor’s
claim, it appears that Janine and Decedent had a plan to
retire in Mexico, and pursuant to that plan they bought a
house in Mexico and moved there in October 2014. Janine
states that she lived there ‘full time,’ and she does not
mention moving to a subsequent address in the
declaration in support of the creditor’s claim or in her
residency declaration. Accordingly, it appears that Janine
changed her residence and domicile to Mexico in October
of 2014. [¶]
“Although the retirement plan may not have worked out
as Janine wanted, and although she states that she wants
to return to the United States, there is no indication that
she has moved back to the United States. Instead, it
appears that she has lived in Mexico for the past seven
years. While she may have substantial connections to the
United States, there is no evidence showing that she has
changed her residence or domicile back to the United
States. Her claim that she has spent 252 days in the
United States in 2019 and 2020 only amounts to 34.5% of
those two years. Additionally, even in her more recent
declaration Janine states: ‘[a]s soon as the probate case is
over, I will sell my home in Mexico and return to live
permanently in the United States.’ (ROA 160, ¶ 10.) This
statement indicates that Janine has no intention of living
in the United States during the administration of the
estate. These circumstances are similar to [In re Estate of
Weed (1898) 120 Cal. 634 (Weed)], in that Janine lost her
resident and domicile status when she moved to Mexico in
2014, and she has not regained resident or domicile status
9
in the United States because she still has not moved
back.”
DISCUSSION
Janine argues the trial court abused its discretion in removing her as
administrator of Ramsey’s estate. Focusing on taxation cases construing
California residency, she maintains that she is a resident based on her
significant and continuing ties to the U.S. But as we explain, even if we
accept that residency under section 8402 does not require U.S. domicile,
substantial evidence supports the court’s factual finding that Janine merely
visited the U.S. on a temporary basis after moving to Mexico in 2014 without
ever residing here. Accordingly, there was no abuse of discretion in ordering
her removal.
A. The standard of review.
We review the probate court’s order removing Janine as administrator
for abuse of discretion.6 (Sapp, supra, 36 Cal.App.5th at p. 103.) In applying
this standard “the deference it calls for varies according to the aspect of a
6 As a threshold matter, Ali suggests the appeal should be dismissed for
failure to properly identify an appealable order. (See Sapp, supra, 36
Cal.App.5th at p. 98.) But the notice of appeal makes clear that Janine is
appealing an order removing her as the estate administrator. “Orders
removing a personal representative and revoking the letters of
administration issued to the personal representative are appealable.” (Id. at
p. 99; §§ 1300, subd. (g), 1303, subd. (a).)
We likewise reject Janine’s suggestion that laches or equitable estoppel
prevented Ali from challenging her residency several years into the probate
case. As Ali points out, such fact-intensive arguments cannot be raised for
the first time on appeal. (Prang v. Los Angeles County Assessment Appeals
Bd. No. 2 (2020) 54 Cal.App.5th 1, 18 [laches]; Rogers v. County of Los
Angeles (2011) 198 Cal.App.4th 480, 490, fn. 6 [equitable estoppel].) Nor does
Janine explain how she was prejudiced or relied to her detriment where any
delay by Ali merely gave her more time to administer Ramsey’s estate.
10
trial court’s ruling under review. The trial court’s findings of fact are
reviewed for substantial evidence, its conclusions of law are reviewed de
novo, and its application of the law to the facts is reversible only if arbitrary
and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706,
711−712.) Thus, we independently construe the meaning of “resident” in
section 8402, subdivision (a)(4). We then determine whether substantial
evidence supports the court’s factual finding that Janine was not a resident of
the U.S. under that definition. Reversal is compelled only if under all the
evidence, viewed in the light most favorable to the court’s order, no judge
reasonably could have reached the same result. (Sapp, at p. 104.)
B. A “resident of the United States” is someone who actually lives in the
United States, not someone who temporarily visits.
In probate proceedings, the court appoints a personal representative to
administer the decedent’s estate. “That person or firm ordinarily is (a) an
‘executor’ named as such in the decedent’s will, (b) a successor to that
executor, called an ‘administrator-with-the-will-annexed,’ or (c) an
‘administrator’ where the decedent died without a will naming an executor.”
(Estate of Hilton (1996) 44 Cal.App.4th 890, 894, fn. 1; see Heath, supra, 166
Cal.App.4th at p. 400; § 8460, subd. (a).) An executor or administrator must
preserve the estate, discharge debts, and distribute the residue to
beneficiaries under the will or pursuant to the statutory rules governing
intestate succession. (Sapp, supra, 36 Cal.App.5th at p. 102; Heath, at
p. 401.)
Section 8402 defines eligibility requirements for personal
representatives. As relevant here, “a person is not competent to act as
personal representative . . . [if] [t]he person is not a resident of the United
11
States.” (§ 8402, subd. (a)(4).)7 The word “resident” is not defined in the
Probate Code. Janine suggests the term impliedly refers to the location that
the person is most closely connected to, and she highlights her numerous ties
to California. Ali, by contrast, argues that residency is synonymous with
domicile—“residency involves a person’s physical presence in a particular
place with the intention to make that place one’s home.”
To evaluate these competing claims, we begin by tracing the statutory
history. The residency requirement was first introduced to the probate
administration statutes in 1878 through an amendment to former section
1369 of the Code of Civil Procedure. That statute provided that “[n]o person
is competent or entitled to serve as administrator or administratrix who is
. . . Not a bona fide resident of the State.” (Former Code of Civ. Proc., § 1369;
Stats. 1877, ch. 585, § 3; see In re Estate of Beech (1883) 63 Cal. 458, 459; In
re Estate of Martin (1912) 163 Cal. 440, 442.)8 In 1931, the statute was
repealed and recodified as former section 420 of the Probate Code without
substantive change, barring anyone from serving as administrator “who is
not a bona fide resident of this state.” (Stats. 1931, ch. 281, § 420, pp. 607–
608; see In re Estate of Pascoe (1966) 242 Cal.App.2d 85, 87.)
Further changes came in 1980, when section 420 was relaxed to require
only U.S. residency. As initially introduced, the proposed bill deleted the
7 This residency requirement does not apply to executors named in a
will. (See § 8402, subd. (b).)
8 Previously, the statute provided that an administrator could not be
“1. Under the age of majority; 2. Convicted of an infamous crime; 3. Adjudged
by the Court incompetent to execute the duties of the trust by reason of
drunkenness, improvidence, or want of understanding or integrity.” (Former
Code Civ. Proc., § 1369, as enacted in 1872.) California residency was added
as a fourth requirement in the 1877 to 1878 term.
12
residency requirement altogether. (Assem. Bill No. 2985 (1979−1980 Reg.
Sess.) § 12, Mar. 6, 1980.) A committee report explained that the legislation
“would delete the requirement of residence in California for administrators
and provide for substitute service on the Secretary of State for non-resident
administrators.” (Assem. Ways and Means Com., Rep. on Assem. Bill No.
2985 (Apr. 9, 1980) p. 2.) But in the next revision, the bill required a
personal representative be “a resident of the United States.” (Sen. Judiciary
Com, Analysis of Assem. Bill No. 2985 (1979−1980 Reg. Sess.) § 12, as
amended Apr. 15, 1980.) Through this language, the amendment
“authorize[d] nonresidents of California to serve as administrators as long as
they [were] residents of the United States.” (Legis. Counsel, Rep. on Assem.
Bill No. 2985 (1979−1980 Reg. Sess.) Aug. 29, 1980, p. 3.)
Following the 1980 amendment, former section 420 read: “No person is
competent to serve as an administrator or administratrix who is not a
resident of the United States . . . .” (Stats. 1980, ch. 955 (Assem. Bill No.
2985) § 12, p. 3015.) This statute was repealed and recodified in 1990 as
section 8402, subdivision (a)(4) and has remained substantively unchanged
since. (See generally, Damskog, supra, 1 Cal.App.4th at pp. 80–81
[discussing legislative history]; see also Heath, supra, 166 Cal.App.4th at
p. 401.)
Although the 1980 amendments revised the geographic scope and no
longer insisted that residency be “bona fide,” the statute has at all times
required that a personal representative be a “resident,” first of California and
later of the U.S. With no recent case authority on point, older cases
construing that word in evaluating California residency appropriately guide
our construction. For example, California residency was established in In re
Estate of Gordon (1904) 142 Cal. 125 by a decedent’s brother who sold his
13
property in Massachusetts, came to California intending to make it his
permanent home, and “resided here continuously for some six years past”
before his sister’s death. (Id. at p. 128.) By contrast, several cases rejected
California residency where the proposed administrator merely intended to
relocate to California but did not yet live here. (In re Estate of Donovan
(1894) 104 Cal. 623, 625‒626 (Donovan) [decedent’s brother did not establish
residence by coming from Massachusetts to California for three days and
stating his intent to remain]; Weed, supra, 120 Cal. at p. 639 [decedent’s niece
lost her California residency when she and her husband “moved east, taking
with them all of their property, and established a residence there which they
maintained for nearly five years”]; Estate of Barnes (1921) 187 Cal. 566,
568−569 [decedent’s father did not establish California residency through his
intent alone where he came in haste from Illinois, bringing no property with
him, and could not immediately relocate].)9
Equating “residence” with “domicile,” Weed explained that when a
person moves to another place intending to remain there indefinitely, that
place “ ‘becomes his place of residence or domicile, notwithstanding he may
have a floating intention to return to his old residence at some future time.’ ”
9 A contrary result was reached in In re Estate of Newman (1899) 124
Cal. 688 based on the procedural posture and standard of review. The
decedent in Newman had moved to California and lived there for 40 years
while his wife remained in New Hampshire. On his death, his surviving
spouse sought to be named administrator of his estate, claiming she came to
California because her husband had left an estate and, having arrived,
intended to remain. Distinguishing Donovan, supra, 104 Cal. 623, the
Supreme Court found this sufficient to establish California residency because
the trial court had credited her testimony as to her relocation and intent to
remain.
14
(Weed, supra, 120 Cal. at p. 639.)10 Accordingly, a decedent’s niece who had
left San Francisco with her husband, moved to Connecticut, and lived there
for nearly five years while her husband worked on an invention, was not a
California resident despite their stated intention to return. (Weed, at p. 639.)
“She left her husband at their home in the east and would not have come [to
California] at that time if her uncle had not died.” (Ibid.) Nor did she regain
her California residence immediately on her return to administer her dead
uncle’s estate. “To be a bona fide resident of the state one must really and in
good faith have established a home or other place of residence therein, where
he lives, and to which when away on business or pleasure he returns.” (Id. at
p. 640.)
In short, early cases equated residency with domicile: those who were
not domiciled in California could not serve as estate administrator. The
Legislature recodified the original statute multiple times over the past
hundred and forty years. Although it expanded eligibility to U.S. residents
and deleted the “bona fide” modifier, it did nothing to abrogate the long line
of cases construing “resident” to mean “domicile.” “When a statute has been
construed by judicial decision, and that construction is not altered by
subsequent legislation, it must be presumed that the Legislature is aware of
the judicial construction and approves of it.” (Heath, supra, 166 Cal.App.4th
10 Weed relied in part on the definition of residence in repealed section 52
of the Political Code, now codified in substantially the same form at section
244 of the Government Code. (See Weed, supra, 120 Cal. at p. 638.)
Equating residence with domicile, this statute explains that a person’s
residence “is the place where one remains when not called elsewhere for labor
or other special or temporary purpose, and to which he or she returns in
seasons of repose,” “cannot be lost until another is gained,” and “can be
changed only by the union of act and intent.” (Gov. Code, § 244.)
15
at p. 402; see also In re Marriage of Amezquita & Archuleta (2002) 101
Cal.App.4th 1415, 1421.)11
To be sure, residency and domicile are not always synonymous.
Although cases sometimes use the words interchangeably, “ ‘residence’
connotes any factual place of abode of some permanency, more than a mere
temporary sojourn,” whereas domicile is more comprehensive, including “both
the act of residence and an intention to remain.” (Smith, supra, 45 Cal.2d at
p. 239.) “[A] person may have only one domicile at a given time, but he may
have more than one physical residence separate from his domicile, and at the
same time.” (Ibid.) To determine the meaning of “residence,” it is necessary
to look at the purpose of each act. (Id. at p. 240.) For example, as the
Supreme Court observed in Smith, residence is synonymous with domicile in
construing the Probate Code’s venue statute. (Id. at p. 239, citing Estate of
Glassford (1952) 114 Cal.App.2d 181, 186 (Glassford).)12 By contrast,
11 Cases suggest that the residency requirement aims to ensure that
administrators “reside in the United States where the probate court can
exercise personal jurisdiction over them, if need be, as they perform their
duties.” (Damskog, supra, 1 Cal.App.4th at p. 82.) Yet, even as personal
jurisdiction jurisprudence has evolved, the statute has always used the word
“resident” without abrogating cases construing this term to mean “domicile.”
12 Former section 301 (repealed by Stats. 1988, ch. 1199, § 40) made
venue proper where a decedent resided. Cases applying that statute
construed residency to mean “domicile.” (Glassford, supra, 114 Cal.App.2d at
p. 186; Estate of Brace (1960) 180 Cal.App.2d 797, 802; Estate of Phillips
(1969) 269 Cal.App.2d 656, 659.) Section 7051 (added by Stats. 1988, ch.
1199, § 80.5) restated former section 301 without substantive change but
substituted “domicile” for “residence” to codify existing case law. (See Cal.
Law Revision Com. com., 53A West’s Ann. Cal. Prob. Code, foll. § 7051, p. 23;
Recommendations Relating to Probate Law (Nov. 1987) 19 Cal. Law Revision
Com. Rep. (1988) p. 941.) Interestingly, no similar change was made as to
the residency requirement in section 8402, subdivision (a)(4).
16
residency takes on a more factual meaning in other statutes, “contemplating
an actual, as distinguished from a constructive or legal residence.” (Smith, at
pp. 239−240.)
An argument could be made that section 8402, subdivision (a)(4)
continues to require domicile given numerous recodifications that did not
abrogate early cases. We need not resolve that question here. Even if we
assume that deleting the “bona fide” modifier in 1980 somehow relaxed
statutory requirements, the statute at all times required actual residence
rather than temporary or transitory presence in the U.S. Despite any stated
intent to return, a person is ineligible to serve as administrator who leaves
the U.S. and sets up a residence abroad intending to remain indefinitely.
(See, e.g., Weed, supra, 120 Cal. at p. 639.) Taking this analysis one step
further for purposes of this case, where a person does not actually live in the
U.S., her connections to this country cannot alone establish residency.
Janine’s taxation cases support this reasoning. For purposes of state
income tax, a resident includes someone who is in California “for other than a
temporary or transitory purpose.” (Rev. & Tax Code, § 17014, subd. (a)(1).)
In each of those decisions, California residency was found as to taxpayers
who actually lived in California but also had a residence in another state,
were domiciled elsewhere, or intended to relocate outside California in the
future. (Whittell v. Franchise Tax Bd. (1964) 231 Cal.App.2d 278, 286
[residence was established as to couple that lived in California nine months
of every year, owned property in the state, and had significant family and
business connections here]; Peringer v. Franchise Tax Board (1980) 105
Cal.App.3d 514, 517 [despite taxpayer’s Washington domicile, residence was
established where he worked and lived in California in a position that he
conceded might last indefinitely]; Noble v. Franchise Tax Bd. (2004) 118
17
Cal.App.4th 560, 569 (Noble) [residence established as to persons living in
California who intended to relocate to Colorado but had yet to do so].)
Although these cases highlighted a taxpayer’s California contacts in
establishing state residency, Janine does not cite—nor have we found—a case
finding California residency based solely on such ties as to a taxpayer who
lives “full time” outside California and maintains no residence in the state.
As applicable tax regulations explain, “If an individual acquires the status of
a resident by virtue of being physically present in the State for other than
temporary or transitory purposes, [she] remains a resident even though
temporarily absent from the State. If, however, [she] leaves the State for other
than temporary or transitory purposes, [she] thereupon ceases to be a
resident.” (Cal. Code Regs., tit. 18, § 17014(a), italics added.) 13 The cases
prioritize a taxpayer’s physical presence over subjective intent in determining
residency. (Noble, supra, 118 Cal.App.4th at pp. 567−568.)
In short, as a matter of law, a resident of the U.S. under section 8402,
subdivision (a)(4) is a person who actually lives in the U.S. and is not merely
13 Although it is a fact-specific question whether a person is in California
temporarily so as to avoid income tax, generally speaking, “[I]f an individual
is simply passing through this State on [her] way to another state or country,
or is here for a brief rest or vacation, or to complete a particular transaction,
or perform a particular contract, or fulfill a particular engagement, which
will require [her] presence in this State for but a short period, [she] is in this
State for temporary or transitory purposes, and will not be a resident by
virtue of his presence here.” (Cal. Code Regs., tit. 18, § 17014(b).) By
contrast, if a person is in this state for “a relatively long or indefinite period
to recuperate [from illness], or [she] is here for business purposes which will
require a long or indefinite period to accomplish, or is employed in a position
that may last permanently or indefinitely, or has retired from business and
moved to California with no definite intention of leaving shortly thereafter,
[she] is in the State for other than temporary or transitory purposes, and,
accordingly, is a resident taxable upon [her] entire net income even though
[she] may retain [her] domicile in some other state or country.” (Ibid.)
18
present temporarily. U.S. residency is not established by mere connections
alone.
C. Substantial evidence supports the court’s finding that Janine did not
reside in the United States.
The trial court concluded that “regardless of whether the court finds
that ‘resident’ in section 8402 is synonymous with ‘domicile,’ or . . . has a
more temporary meaning than domicile . . . the preponderance of the
evidence establishes that Janine is not a resident of the United States under
either interpretation of the term.” Substantial evidence supports that
finding. The court found Janine’s 2019 creditor’s declaration more reliable
than her 2021 residency declaration because it was filed before her residency
was at issue, “so it is likely that she was more honest about where she lived
and her intentions.” Based on that declaration, it determined that Janine
lived in Mexico “full time” since October 2014, when she and Ramsey moved
there to retire. Her substantial connections to the U.S. did not amount to a
change of residence. By her own account, she spent only a third of the days
over the past two years in the U.S. and did not intend to move back until
after the probate case was over. Likening the case to Weed, supra, 120 Cal.
634, the court found that Janine lost her U.S. residency on moving to Mexico
in 2014 and had not regained it because she had yet to establish a residence
in the U.S.
Janine faults the court’s credibility finding, arguing “there is no basis
to say one [declaration] was more credible than another.” 14 But under
substantial evidence review, appellate courts defer to a trial court’s
14 We disregard Janine’s separate objection to language in the court’s
tentative ruling regarding her credibility, which the court addressed at the
hearing and removed from its final order.
19
credibility determinations “whether the trial court’s ruling is based on oral
testimony or declarations.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479;
accord People v. Vivar (2021) 11 Cal.5th 510, 528, fn. 7.) Nor was the trial
court’s credibility finding “a clear abuse of discretion” where the court
logically credited the declaration filed by Janine at a time when her residency
was not at issue. Even otherwise, although the court discounted Janine’s
2021 declaration, it did not ignore her substantial U.S. ties in reaching its
decision.
Even if we give equal weight to all the evidence presented, the record
amply supports the court’s finding that Janine was not a U.S. resident.
Janine’s 2019 declaration stated that she and Ramsey lived in Carlsbad after
they got married. In 2013, they started searching for a home in Baja
California Sur, Mexico, where Ramsey hoped to retire and live a quieter life.
They found one in 2014, and Janine sold her separate property home in
Carlsbad to facilitate their move. She financed their new home in Baja
California Sur, Mexico exclusively with the proceeds from the sale of her
Carlsbad home, anticipating retirement. She then moved into the Mexico
home in October 2014 and “lived in that home full time.”
From 2014 to 2016, Janine claimed that Ramsey lived a double life in
San Diego, leaving her for a month at a time and spending her nest egg. She
only discovered these transactions after his death—in the interim, she “was
located at our Baja California[ ] Sur[,] Mexico [home] full time,” “setting up
the home in Baja” while Ramsey traveled alone to San Diego. Even in this
declaration filed three years after Ramsey’s death, Janine gave no indication
in that declaration that she had left Mexico.
In her 2021 declaration, Janine asserted that she “frequently come[s] to
the United States (252 days in 2019 and 2020)” and noted several contacts
20
and ties in California. She stated that she grew up in California and has
family here, holds a California driver’s license, voted in San Diego County
(including in 2016, 2018, and 2020), maintained medical providers and
attorneys in California, and held bank accounts and paid taxes in California.
Janine disavowed any intent to become a permanent resident or citizen of
Mexico, explaining that she stayed in Mexico on a tourist visa and did not
speak fluent Spanish. Yet in that same declaration, Janine confirmed that
she still owned a home in Mexico. The only reason she stayed there was
because “[she] own[ed] a house there, free and clear, where [she could] live
inexpensively.” She claimed her plan was to “sell [the] home in Mexico and
return to live permanently in the United States” after the probate case was
over.
At best, while Janine had many contacts with the U.S. and visited
frequently, there was no evidence that she actually lived anywhere but
Mexico since moving there in 2014. Her bank accounts, doctors, and family
gave her several reasons to visit California, but those visits did not establish
residency on their own. Janine was not a person who lived in California and
temporarily found herself in Mexico, but rather someone who lived in Mexico
and made frequent but temporary visits to the U.S. Accordingly, sufficient
evidence supports the court’s finding that Janine was not a “resident of the
United States” as required by section 8402, subdivision (a)(4), and there was
no abuse of discretion in ordering her removal as administrator of Ramsey’s
estate.15
15 Given our decision, we need not reach Ali’s alternative argument that
there were other grounds not considered by the trial court that would have
supported Janine’s removal as estate administrator.
21
DISPOSITION
The order removing Janine as administrator is affirmed. Respondent is
entitled to costs.
DATO, J.
WE CONCUR:
HALLER, Acting P. J.
BUCHANAN, J.
22