Filed 4/27/20 Karamooz v. Karamooz CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

NIMA KARAMOOZ,

Plaintiff and Respondent,

v.

SAEED KARAMOOZ,

Defendant and Appellant.

G056897

(Super. Ct. No. 30-2010-00380990)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Jacki C. Brown, Judge. Affirmed in part and reversed in part, and remanded with directions.

One, Peter R. Afrasiabi, Jenny S. Kim; Law Office of Kathryn M. Davis, Kathryn M. Davis; Valor, Ramin Kermani-Nejad, Mohamad Ahmad and Makoa Kawabata for Defendant and Appellant.

Lefton Law, Jennifer Lefton; Conti Law and Alexander L. Conti for Plaintiff and Respondent.

* * *

The court removed defendant and appellant Saeed Karamooz (Saeed) as the personal representative of the estate of Nahid Karamooz (decedent) and surcharged him for breach of fiduciary duty. It appointed plaintiff and respondent Nima Karamooz (Nima) as the special administrator of the estate.

Saeed appeals the removal and surcharge, arguing the action was barred by the statute of limitations and laches, there was insufficient evidence to show he breached his fiduciary duty, Nima was equitably estopped in making arguments about the value of the estate assets, the method of calculating the amount of the surcharge was erroneous, and the court erred in awarding attorney fees.

We conclude a portion of the surcharge amount was error. Consequently we reverse in part and remand for the court to enter a new surcharge amount in the judgment. We affirm the remainder of the judgment. We also deny Nima’s request for sanctions in his respondent’s brief because a separate motion is required.

FACTS AND PROCEDURAL HISTORY

Decedent, who died in December 2008, created a revocable trust (Trust) and also executed a pour-over will (Will). Decedent’s son Nima was the sole beneficiary of the Trust and, except for $1 each to Nima’s two siblings, the Will as well. Decedent was the original trustee of the trust; Nima was named as the successor trustee. Nima did not want to serve as the trustee and he appointed his father, Hossein Karamooz (Hossein), as successor trustee. The Will named decedent’s brother Saeed as the personal representative of the estate.

Estate assets at the date of death included two Wells Fargo bank accounts (Wells Fargo Accounts) totaling approximately $182,600; two US Bank accounts totaling approximately $7,000; a 34 percent interest in commercial real estate (Bonsall Property); a promissory note from Michael Mirpour and Majid Nourai (Mirpour Note) for approximately $530,000 secured by the Bonsall Property; and a promissory note from Mehdi Lurhassabi (Lurhassabi Note) for $150,000.

In August 2009 Nima filed a Heggstad petition to confirm Trust ownership of the estate assets, to avoid having to probate the Will. (Prob. Code, § 850, subd. (a)(3); all statutory references are to this code unless otherwise stated.) When the Heggstad petition was filed Saeed was given notice he was the personal representative of the estate. Saeed objected to the Heggstad petition, claiming the Will was not a pour-over will. The petition was denied.

In January 2010 Saeed filed a petition to probate the Will showing an approximate $4.85 million value for the estate. Dennis Illingworth (Illingworth) was appointed as the probate referee. The court issued letters testamentary to Saeed naming him the personal representative of the estate, and informed him in writing he was required to file an inventory and appraisal of all of the estate’s assets within four months, i.e., by October 2010. Saeed did not file an inventory and appraisal until June 2012 (2012 Inventory & Appraisal), when he also filed a final accounting and report (2012 Accounting). The only estate assets he listed were the Wells Fargo Accounts. The 2012 Accounting also stated there was no income or estate tax liability and no returns had been filed.

Nima filed an objection to the 2012 Accounting raising several issues, including that the estate owned at least three pieces of real property. In addition, he believed state and federal taxes were due. He also filed a petition to remove Saeed as the personal representative (First Removal Petition), listing numerous grounds, including Saeed’s failure to file an inventory and appraisal, to account, to identify the estates assets and liabilities, to safeguard assets, and to file tax returns.

During litigation of the First Removal Petition, Saeed “reminded” Nima Saeed made millions of dollars a year and “demanded” Nima pay him $200,000 or he “would bury [him] under the ground.” Nima believed this was a threat to prolong the litigation until there were no more estate assets and “beat [him] into submission.”

The Will directed the personal representative to determine the method and location of decedent’s burial. Upon decedent’s death, Hossein had her buried in a Muslim cemetery in Oregon, although she had converted to Christianity. Later, when Saeed became the personal representative he took steps to have her body exhumed and moved to California to be buried in a Christian cemetery. Saeed spent $80,000 of the estate’s funds to pay for the exhumation and reburial without court authorization.

In May 2013, Saeed filed an action against Hossein (Conversion Action) for conversion, recovery of property under section 850, trespass to chattels, breach of implied contract, claim and delivery, replevin, and for double damages under section 859, seeking $3 million in damages. The Conversion Action was based on allegations Hossein took Persian rugs, a car, and other property including jewelry, precious metals, and crystals from the estate.

In September 2013 trial commenced on the First Removal Petition. After some testimony and admission of evidence, the parties entered into a settlement (Settlement). The 2012 Accounting and First Removal Petition were dismissed without prejudice. Nima agreed to help inventory the rugs in exchange for Saeed’s agreement not to proceed with the Conversion Action. Saeed agreed to marshal the assets of the estate, including the Persian rugs, and file another inventory and appraisal so the estate could be closed. The bond was reduced to $400,000.

Despite the Settlement, the Conversion Action continued and Saeed did not file an inventory and appraisal. In June 2014 Nima filed a petition to compel a final accounting and to distribute assets. He reiterated he had filed an objection to the 2012 Accounting Saeed had filed due to multiple inadequacies. He also alleged the Settlement and Saeed’s failure to comply with its terms. Further, he alleged Saeed failed to provide an accurate inventory and appraisal, failed to protect assets, and failed to pay income taxes, among other alleged misdeeds.

In October 2014 Saeed filed an interim accounting and report. In February 2015 the court ordered Saeed to file another interim accounting by May 8. It was not filed. In June the court ordered Saeed to file an interim accounting by July 23, 2015. On August 3, 2017 Saeed filed an interim accounting, to which Nima filed an objection.

In July 2016 Nima filed another petition to suspend Saeed’s powers, remove him as executor, and appoint a special administrator. After the court sustained Saeed’s demurrer in part, Nima filed an amended petition (Second Removal Petition). The Second Removal Petition sought damages, attorney fees, and to surcharge Saeed. Nima alleged that over the past six years since Saeed was appointed personal representative he had breached his fiduciary duties, failed to account, wasted and mismanaged estate property, created substantial estate tax liability, and engaged in questionable litigation, i.e., the Conversion Action, on behalf of the estate.

In November 2017, Saeed filed a supplemental inventory and appraisal (2017 Inventory) listing only the judgment in the Conversion Action.

On the day before trial on the Second Removal Petition in May 2018, Saeed filed a First Report and Account and Petition for Settlement (2018 Accounting). It stated the inventory and appraisal previously filed were incorrect and had to be amended. Saeed noted he was “working on” a corrected inventory.

At trial on the Second Removal Petition, Nima’s expert, James Kelly (Kelly), a certified public accountant (CPA), testified the gross value of the estate at the date of death was $6.424 million. Therefore, an estate tax return was required to be filed within nine months of decedent’s death. Because the return was not filed timely, the IRS would send a notice of penalties and interest due. In addition, personal income tax returns for decedent should have been filed for 2008. Because the returns were not timely filed, there also would be penalties and interest due.

The court issued a statement of decision on the Second Removal Petition, which was subsequently modified. The court denied Saeed’s motion for judgment on the pleadings based on the statute of limitations and motion for judgment as a matter of law. It found the duties of a fiduciary are ongoing and the statutes of limitations are not the same for a fiduciary as for a claim based on breach of contract or tort. The court noted it would focus on equitable remedies, including a consideration of laches.

The court found Saeed breached his fiduciary duty in several respects and removed him as the personal representative. He “did essentially very little to marshal the assets.” Rather, he relied on information provided by professionals Hossein hired, which was unreasonable, especially in light of Saeed’s admitted lack of trust in Hossein and also the animosity between Hossein and Nima. The court also faulted Saeed’s “extreme delay” in providing an inventory and an accounting and failing to explain “estate proceedings,” and having estate properties appraised.

Saeed additionally breached his fiduciary duty by using estate funds to exhume and rebury decedent without court approval in light of Nima’s opposition to it. The court also found Saeed’s failure to recognize and understand the legal effect of a pour-over will while continuing to act as the personal representative “created a direct conflict of interest.” Saeed breached his fiduciary duty to Nima, the beneficiary of the Will and the named successor trustee of the Trust to which the estate assets should have been transferred.

The court surcharged Saeed $500,000. It found the value of the estate in early 2010, when Saeed was appointed personal representative, was $617,590, as appraised by Illingworth and as evidenced by the exhibits admitted. Nima was denied that value for eight years. In calculating the surcharge amount, the court reduced the $617,590 by the $80,000 exhumation costs based on laches for Nima’s delay in bringing that claim and by another $37,000 for certain potential tax liabilities because they would be owed by the Trust, not the estate.

In addition, the court found Saeed should bear the liability for penalties and interest for late filing of tax returns.

The court also awarded attorney fees, finding Saeed’s “repeated and persistent fail[ures] to properly file a timely inventory and accounting, to respond to demands for an accounting,” and explain the Conversion Action and the basis of his “exorbitant expenditures” “were all without reasonable cause.”

The court denied Saeed’s motions for new trial and to vacate the judgment. Thereafter, Nima was appointed the special administrator of the estate.

DISCUSSION

1. Principles of Appellate Review

“‘It is well settled that all presumptions and intendments are in favor of supporting the judgment or order appealed from, and that the appellant has the burden of showing reversible error, and in the absence of such showing, the judgment or order appealed from will be affirmed.’” (Estate of Sapp (2019) 36 Cal.App.5th 86, 104 (Sapp).) “‘If the decision of a lower court is correct on any theory of law applicable to the case, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the lower court reached its conclusion.’” (Id. at p. 104, italics omitted.)

2. Duties of Personal Representative

Saeed, as the personal representative, was “‘“‘an officer of the court and occupie[d] a fiduciary relation toward all parties having an interest in the estate.’” [Citation.] “‘Executors occupy trust relations toward the legatees, and are bound to the utmost good faith in their transactions with the beneficiary.’” [Citations.]’” (Estate of Seifert (2005) 128 Cal.App.4th 64, 68.) A personal representative must use ordinary care, diligence, and prudence (§ 9600, subd. (a); Estate of Beach (1975) 15 Cal.3d 623, 631) and must not take unfair advantage of the beneficiaries (Estate of Sanders (1985) 40 Cal.3d 607, 616). A personal representative’s duties include marshalling, preserving, and managing assets, paying taxes, and distributing the net estate to the beneficiaries. (§§ 8800, subd. (b), 9650, subds. (a)(1), (b), 12200, subd. (a).)

To fulfill these duties the personal representative is required to file an inventory and appraisal within four months of letters being issued. (§ 8800, subd. (b).) The personal representative must include on the inventory all property owned by the estate on the date of death, which, except for cash, must be appraised by the probate referee. (§ 8902, subd. (b).) If, after an inventory and appraisal has been filed, the personal representative learns of additional estate property, he must file a supplemental inventory and appraisal within fourth months. (§ 8801.)

3. Statute of Limitations and Laches

Saeed claims the Second Removal Petition is barred by the statute of limitations. He relies on Code of Civil Procedure section 338, a three-year statute for statutory violations, and Code of Civil Procedure section 343, a four-year statute for actions not otherwise covered by a statute. He argues the misconduct underlying Nima’s claims occurred in 2010 at the earliest, when Saeed failed to inventory the estate’s assets, or 2012 at the latest, when he filed the 2012 Inventory and Appraisal. He further contends the First Removal Petition was based on the same misconduct, and Nima had actual knowledge of the claims in February 2011. We are not persuaded.

“‘“[T]he rule is that the statute of limitations does not run where the parties occupy a fiduciary relationship toward each other, so long as such relationship is not repudiated.”’” (Estate of Seifert, supra, 128 Cal.App.4th at p. 68.) As a fiduciary Saeed had a continuing duty to the estate. (See, e.g., Estate of Schneider (1979) 95 Cal.App.3d 55, 60 [obligation to account is continuing duty].) This included, among other things, his duties to file a correct and timely inventory and appraisal, to account, and to file estate and income tax returns. As the Second Removal Petition alleged, at the time it was filed Saeed still had done none of those things and also had continued to pursue the ultimately unsuccessful Conversion Action against Nima’s expressed wishes.

Saeed argues, because Nima knew of Saeed’s original breaches in 2010 or 2012, Nima was barred from petitioning to remove him for continuing breaches. That is contrary to law. (Estate of Seifert, supra, 128 Cal.App.4th at p. 68; Estate of Schneider, supra, 95 Cal.App.3d at p. 60.)

We are also not persuaded by Saeed’s claim the Second Removal Petition did not allege any new breaches subsequent to the filing of the 2012 Inventory. Rather, the Second Removal Petition alleged Saeed had breached his fiduciary duties for the past six years. And at the time the Second Removal Petition was filed, Saeed had still not filed a complete and proper inventory and appraisal.

To be clear, we are not stating the statute of limitations never runs for breach of fiduciary duty. Under the facts of this case, however, it did not.

Likewise, there is no basis to reverse on the ground of laches. Laches is an equitable defense comprised of two elements: unreasonable delay in bringing an action and either acquiescence in the defendant’s misconduct or prejudice to the defendant as a result of the delay. (Highland Springs Conference & Training Center v. City of Banning (2016) 244 Cal.App.4th 267, 282.) We generally review a laches ruling for abuse of discretion. (Straley v. Gamble (2013) 217 Cal.App.4th 533, 537, 539.)

The record does not reflect Nima unreasonably delayed in filing the Second Removal Petition. Nor did the court find the delay was “extreme” as Saeed claims. Rather, the only finding of “extreme delay” was regarding Saeed’s failure to timely perform his duties.

4. Breach of Fiduciary Duty

To prove breach of fiduciary duty there must be evidence of the duty, breach of the duty, and damages proximately caused by the breach. (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 646.) The court found Saeed breached his fiduciary duty in several respects, as detailed above. We review for substantial evidence. (Penny v. Wilson (2004) 123 Cal.App.4th 596, 604.)

Saeed disputes the court’s finding he unreasonably relied on Hainley and McIntosh, the attorney and CPA hired by Hossein, especially in light of the hostility between Hossein and Saeed. He argues the professionals were Nima’s agents and asserts he had the right to rely on them because they controlled the estate for 18 months and represented Nima’s interests. Finally, he maintains the animosity between him and Hossein is irrelevant.

The trial court considered and rejected these same arguments. It specifically found Saeed accepted all the information provided, doing little to verify. Further, the court found it unreasonable for Saeed to rely so heavily on that information in light of his distrust of Hossein and the animosity between Hossein and Nima. We agree.

Saeed as the personal representative had a duty to marshal and preserve the estate assets. (§ 9650, subds. (a)(1), (b).) But he did not use the ordinary care required of him to do so. Saeed cites no authority excusing him from performing his own investigation. Rather, he was required to use ordinary care and diligence. (§ 9600, subd. (a); Estate of Beach, supra, 15 Cal.3d at p. 631.) He was not entitled to surrender his responsibilities to third parties who were not even his agents. And assuming they were Nima’s agents, which we need not and do not decide, that did not excuse Saeed’s failure to properly perform his own duties. (See Estate of Spirtos (1973) 34 Cal.App.3d 479, 488-489 [personal representative may not surrender control of estate to third party, including attorney for estate].)

Saeed claims there is “undisputed evidence” he did his own investigation. But the testimony to which he directs us is skimpy and generalized. And some of it refers to Saeed’s communications with, i.e., reliance on, Hainley and McIntosh.

In a sufficiency of the evidence review, we do not consider conflicting evidence as long as there is substantial evidence to support the findings. (Guillory v. Hill (2015) 233 Cal.App.4th 240, 249.) Further, pointing to uncontradicted evidence is not sufficient. Even in cases where there is uncontradicted evidence, the court is under no obligation to believe it. (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 973, fn. 10.) Saeed must show such evidence “compelled a judgment in his favor.” (Ibid.) The evidence to which he directs us does not meet that burden.

We are not persuaded by Saeed’s attempt to rely on non-California cases or the business judgment rule to justify his lack of investigation. Nor do we agree Nima is equitably estopped from asserting the estate is worth more than Hainley and McIntosh represented in 2010. In support of this claim Saeed relies on a letter dated February 2010 in which Hainley provided information on estate assets. But this document was admitted for the limited purpose of showing Nima had notice of the assets, not for the truth of its contents. Moreover, in light of our resolution of the case, the argument is irrelevant.

5. Removal

Saeed argues he should not have been removed because the delay in filing the inventory and appraisal did not damage the estate and Nima did not show there was tax liability. We disagree.

a. Governing Principles

A personal representative may be removed for mismanagement, wrongful or prolonged failure to perform his duties, neglect of the estate, when it is “otherwise necessary for protection of the estate or interested persons,” or “[a]ny other cause provided by statute.” (§ 8502.) A conflict of interest warrants removal to protect the estate or interested persons. (Estate of Hammer (1993) 19 Cal.App.4th 1621, 1641-1642.) Failure to file tax returns and pay taxes is gross negligence. (See In re Heers (Bankr. 9th Cir. 2015) 529 B.R. 734, 745.) Statutory causes include the failure to timely file an inventory and appraisal. (§ 8804, subd. (a).) We review removal of a personal representative for abuse of discretion. (Sapp, supra, 36 Cal.App.5th at p. 103.)

We review the factual findings underlying the court’s exercise of its discretion by determining, whether, based on the entire record, there is any substantial evidence to support the judgment. (Sapp, supra, 36 Cal.App.5th at p. 104.) “‘Therefore, we must consider all of the evidence in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference from the evidence tending to establish the correctness of the trial court’s decision, and resolving conflicts in support of the trial court’s decision.’” (Ibid.) We may not reweigh or resolve conflicts in the evidence or redetermine the credibility of witnesses. (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613.) Thus, contrary facts do not affect our conclusion.

b. Delay in Filing Inventory and Appraisal

Pursuant to section 8804, subdivision (b) the court may remove the personal representative for failing to timely file an inventory and appraisal. Some cases have interpreted this section to the effect removal will not be ordered absent loss to the estate. (E.g., Estate of Meyers (1955) 130 Cal.App.2d 145, 150; Estate of Buchman (1954) 123 Cal.App.2d 546, 554.) But in those cases, there was justification for delay. In Buchman the court stated, “Anyone with any knowledge of the probate of estates knows that in many cases the filing of the inventory is unavoidably delayed without the fault of the representative.” (Estate of Buchman, at p. 554.) And in Meyers the court excused delay based on the personal representative’s belief there were additional assets to be located. (Estate of Meyers, at p. 150.)

That is not what happened here. Rather, Saeed knew of the assets decedent owned at the date of death and never filed an inventory and appraisal listing them as required. (§§ 8802 [each asset owned at date of death must be listed on inventory], 8850.) The 2012 Inventory, filed almost two years after Saeed was appointed personal representative, listed only the Wells Fargo Accounts. The first time Saeed sent an inventory and appraisal to the probate referee was in 2017, nine years after decedent died, and it listed only the judgment in the Conversion Action. No other assets were documented. The day before trial on the Second Removal Petition, Saeed filed the 2018 Accounting and acknowledged the inventory and appraisals previously filed needed to be corrected. The record does not reflect if or when he filed a corrected inventory. Moreover, Nima had to expend considerable time and money to attempt to get Saeed to file a complete and correct inventory.

Further, Saeed has not directed us to any authority prohibiting removal based on delay even where there is no damage to the estate. The delay here was lengthy and without excuse, justifying the court’s exercise of its discretion to remove Saeed. Removal was also justified based on section 8502, subdivision (c), which authorizes removal where the “personal representative has . . . long neglected to perform any act as personal representative.” Such is the case here. Moreover, this was not the only basis for removal.

c. Failure to File Tax Returns

Saeed contends the court erred in removing him for failing to file tax returns and by imposing tax liability on him because there was no evidence of damages. He asserts Kelly’s testimony as to the amount of tax liability was not admitted and a claim filed by the Franchise Tax Board (FTB) was withdrawn. These arguments do not withstand scrutiny.

Nima presented evidence both a personal and an estate tax return should have been filed and were not. His expert testified the failure to timely file the returns will result in penalties and interest being imposed. Although the amount of the tax liability was not in evidence, the existence of tax liability was in evidence and there is no dispute penalties and interest will be due. And the amount is capable of being made certain.

While it is true the FTB claim was withdrawn because the 2008 personal state income taxes were paid, there is no evidence of filing or payment of an estate tax return or a personal federal income tax return. Thus, it was proper for the court to impose that liability on Saeed. His failure to file tax returns is an additional ground justifying removal. (In re Heers, supra, 529.B.R. at p. 745.)

d. Other Grounds

Removal is also authorized if “necessary for protection of the estate or interested persons.” (§ 8502, subd. (d).) In addition to the reasons discussed above, removal is justified based on Saeed’s threat to bury Nima. (Estate of Effron (1981) 117 Cal.App.3d 915, 930 [removal proper based on personal representative’s hostility toward beneficiary].) As a fiduciary, Saeed had the duty to refrain from taking unfair advantage of Nima. Further, as discussed above, Saeed’s failure to understand or acknowledge the effect of the pour-over Will and act accordingly harmed the estate and was a breach of fiduciary duty. Finally, Saeed breached his duty by spending $80,000 in estate funds to exhume and rebury decedent without authority or court approval, and by maintaining the Conversion Action against Nima’s wishes.

6. Surcharge

a. Governing Principles

A personal representative may be surcharged for misconduct, waste, neglect, mismanagement, or other breach of fiduciary duty. (§ 11001; Estate of Fain (1999) 75 Cal.App.4th 973, 991 (Fain).) Basically, any abuse of office that breaches a personal representative’s duty of ordinary care and diligence that exposes the estate or beneficiaries to loss or damage suffices. (§§ 9600, subd. (b), 9601, subd. (a); Estate of Guiol (1972) 28 Cal.App.3d 818, 825-826.) This includes failure to timely file tax returns (United States v. Boyle (1985) 469 U.S. 241, 249-250; Estate of Harvey (1964) 224 Cal.App.2d 555, 557-558), failure to timely file an inventory and appraisal (Fain, at pp. 992-994), and torts committed in the administration of an estate (Johnston v. Long (1947) 30 Cal.2d 54, 59). The person seeking a surcharge has the burden to prove any loss to the estate was caused by the personal representative’s breach of fiduciary duty. (Estate of Kirkpatrick (1952) 109 Cal.App.2d 709, 713.) We review a surcharge order for abuse of discretion (Estate of Bonaccorsi (1999) 69 Cal.App.4th 462, 467-468) and arguments as to the sufficiency of the evidence supporting the order using a substantial evidence standard (Fain, at p. 987).

b. Causation

Saeed contends there was no evidence he breached a fiduciary duty that caused any loss. He discusses several assets lost to the estate, including the Bonsall Property and the Lurhassabi Note, arguing there was no evidence he could have saved or collected them. He further contends there was no evidence of tax liability. We disagree. There was sufficient evidence of causation justifying a surcharge, although not in the full amount ordered by the court.

First, there was evidence the estate would be liable for both personal income and estate tax liability as established by Kelly’s testimony. Although evidence of the amount of tax liability was not admitted due to a lack of foundation, Nima proved there will be tax liability. That establishes causation.

Second, the court found Saeed breached his fiduciary duty, creating a conflict of interest, by failing to understand the effect of the pour-over Will and act accordingly. Had Saeed fulfilled his duty in this regard and not objected to the Heggstad petition in the first place, this entire controversy and lawsuit could have been avoided. The estate assets would have been transferred to the Trust and there would have been no need for a probate or for Saeed to participate in the estate. That, in and of itself, constitutes a sufficient showing of breach of fiduciary duty and causation.

c. Calculation and Amount of Surcharge

A surcharge is proper where, as a result of a personal representative’s lack of due care or breach of fiduciary duty, the estate or beneficiaries suffer a loss. (§§ 9600, subd. (b), 9601, subd. (a); Estate of Guiol, supra, 28 Cal.App.3d at pp. 825-826.) Saeed’s breaches of fiduciary duty did cause a loss to the estate justifying a surcharge.

As discussed above, there will be penalties and interest due as a result of the failure to timely file income and estate tax returns. Saeed is properly surcharged for that amount, whatever it is determined to be.

In addition, Saeed should be surcharged for the $80,000 the estate paid for his disinterment and reburial of decedent. Although the Will authorized the personal representative to decide the manner and location of decedent’s burial, it did not authorize disinterment or reburial, which “are not a matter of duty but of privilege.” (Walker v. Konitzer (1963) 217 Cal.App.2d 654, 660.) Saeed was required to obtain a court order to take those actions and failed to do so.

The court rejected a surcharge of this amount based on laches because Nima knew of Saeed’s conduct by 2012 but did not seek a surcharge until the Second Removal Petition. But the court did not find Nima acquiesced in the misconduct or Saeed was prejudiced by the delay, a necessary element of laches. Nor does the record reflect this. Thus, laches does not bar the surcharge for this amount.

As to the bank accounts, Bonsall Property, Mirpour Note, and Lurhassabi Note, however, Nima did not meet his burden to show Saeed’s breach of fiduciary duty caused a loss to the estate, and the record does not justify a surcharge for these assets.

Saeed testified that at the time he was issued letters testamentary, there were bank accounts containing a total of $190,663.16. Nima has not directed us to any evidence this money has been lost to the estate. Likewise, Nima did not direct us to any evidence Saeed’s breach of fiduciary duty caused the loss of the Bonsall Property.

Decedent’s 34 percent interest in the Bonsall Property, valued at $425,000, was lost when the first trust deed holder foreclosed on it. The notice of default on that first trust deed was recorded about the same time Saeed was appointed personal representative. There was evidence decedent’s partners had no interest in paying off the arrearages to avoid foreclosure. Saeed testified it would have taken $700,000 to “save” the Bonsall Property, and the estate did not have that amount. The Bonsall Property was sold by the holder of the first trust deed for $702,000, the amount of the unpaid debt.

The same is true of the Mirpour Note, secured by the Bonsall Property. Security for that note was wiped out as a result of the foreclosure on the Bonsall Property. Nima has not shown the Mirpour Note was lost due to Saeed’s wrongdoing.

Another estate asset was the $150,000 Lurhassabi Note. There was evidence it was uncollectable, the maker having stated he would file bankruptcy if collection was attempted. Saeed concluded it would be a waste of estate assets to pursue collection. Nima does not direct us to any evidence to the contrary. Thus, he did not meet his burden to show Saeed’s breach of fiduciary duty caused the loss of the Lurhassabi Note or the payments thereunder.

Nima relies heavily on Saeed’s failure to file a proper inventory and appraisal as a basis for the entire surcharge. While this was a breach of his duty and justifies removal, it did not cause the loss of the Bonsall Property, the Mirpour or Lurhassabi Notes, or the cash on hand.

In addition, Nima argues the amount of the surcharge was properly calculated because Saeed’s wrongdoing caused any uncertainty as to the amount of loss. But the issue is not the amount of damages, it is the fact of damages. Nima had to first prove these assets were lost or the estate suffered damage as a result of Saeed’s breach of fiduciary duty or negligence. At that point, Saeed would bear the responsibility for uncertainty as to the amount of the loss. (Meister v. Mensinger (2014) 230 Cal.App.4th 381, 396-397 [“‘Where the fact of damages is certain, the amount of damages need not be calculated with absolute certainty’”].) Here, the underlying fact of damages was not proven.

In sum, the $500,000 surcharge award must be reversed. On remand, the court shall enter a new judgment ordering a surcharge of $80,000 plus all liability for penalties and interest due to Saeed’s delay in filing tax returns and paying taxes in an amount to be determined.

7. Attorney Fees

Saeed challenges the award of attorney fees to Nima, arguing it is not supported by statutory authority. He points to the court’s reliance on section 11003, subdivision (b), arguing it applies only to an award of attorney fees for bad faith opposition in an accounting contest. We agree.

However, where a “personal representative refuses or negligently fails” to timely file an inventory and appraisal, section 8804 allows the court to award attorney fees. The court characterized Saeed’s failure to timely file an inventory and appraisal “repeated and persistent.” The record bears this out.

Again, the inventory and appraisal was required to be filed within four months of his appointment (§ 8800, subd. (b)), but Saeed did not file his original and designated “final” inventory and appraisal until June 2012, almost two years after letters testamentary were issued. This inventory included only two bank accounts and none of the other estate property. He did not file another inventory and appraisal until the supplemental inventory and appraisal was filed in November 2017, almost five and a half years later. The only asset listed in the 2017 Inventory was the judgment in the Conversion Action. He never filed an inventory listing the other assets owned by the estate at the date of death. This significant violation of section 8800 justified the court exercising its discretion to award attorney fees to Nima under section 8804, regardless of its stated basis. (Sapp, supra, 36 Cal.App.5th at p. 104.)

We reject Saeed’s argument the court failed to consider evidence that his failure to file an inventory and appraisal was Nima’s fault. The court plainly did not believe this to be the case, and substantial evidence supports this view. Again, we do not reweigh evidence or reevaluate the credibility of witnesses. (Citizens Business Bank v. Gevorgian, supra, 218 Cal.App.4th at p. 613.)

We also are not persuaded by Saeed’s argument he did not act in bad faith. Section 8804 does not require bad faith. Moreover, contrary to Saeed’s argument, the court specifically found Saeed threatened to “bury” Nima if Nima did not pay Saeed $200,000. Saeed’s denial or other characterization of this threat is irrelevant.

Saeed’s complaint the court improperly excluded evidence that would have “corroborated” his credibility has no merit. If Saeed intended to appeal this exclusion, his claim is forfeited. He failed to cite to the record where the evidence was offered and the court’s ruling (Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114) and failed to set out the issue under a discrete heading and support the claim with authority and reasoned legal argument (California Rules of Court, rule 8.204(a)(1); Provost v. Regents of University of California, supra, 201 Cal.App.4th at p. 1294).

Finally, there was no due process violation. Nima sought attorney fees in his Second Removal Petition, in his trial brief, and in his closing argument, giving Saeed sufficient notice. Saeed cites no authority section 8804 requires a separate noticed motion.

8. Posttrial Motions

Saeed argues the court erred in denying his posttrial motions to set aside the judgment and for new trial because no notices of intent were filed. He claims there was no prejudice because notices of those motions were served and Nima responded on the merits.

But we do not reverse an order denying a motion for new trial “‘unless there was an abuse of discretion that resulted in prejudicial error.’” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1018.) There is no prejudicial error here. As to that portion of the judgment ordering a surcharge for loss of the Bonsall Property, the promissory notes and the bank accounts, we are reversing. The reminder of the judgment is proper so there was no error in denying the posttrial motions.

9. Nima’s Request for Sanctions

Nima included in the respondent’s brief a request for sanctions in the form of his attorney fees and costs. This request was not sufficient to raise the issue; he was required to file a separate motion. (California Rules of Court, rule 8.276(a); Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837, 858-859.) Nima’s request for attorney fees and costs as sanctions is denied.

DISPOSITION

The judgment is reversed as to the $500,000 surcharge and the matter is remanded with directions for the court to enter a new judgment reflecting a surcharge of $80,000 plus liability for penalties and interest based on delay in filing tax returns and paying taxes in an amount to be determined. In all other respects the judgment is affirmed. Nima is entitled to costs on appeal.

THOMPSON, J.

WE CONCUR:

FYBEL, ACTING, P. J.

IKOLA, J.