Estate of Brown CA2/7

Filed 8/19/21 Estate of Brown CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

Estate of MANDANA KABIRI B305891
BROWN, Deceased.
(Los Angeles County
Super. Ct. No. 18STPB01561)
ROXANA K. CHAMOUILLE, as
Administrator,

Petitioner and Respondent,

v.

KIRK BROWN,

Objector and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County. Clifford L. Klein, Judge. Affirmed.
Kirk Brown, in pro per., for Objector and Appellant.
Buchalter and Robert M. Dato; Oldman, Cooley, Sallus,
Birnberg, Coleman & Gold, Jamie N. Gonzalez and Jeffrey M.
Oberto for Petitioner and Respondent.
 INTRODUCTION

Roxana Kabiri Chamouille filed a probate petition when
her sister, Mandana Kabiri Brown, died. The probate court
appointed Chamouille special administrator of Mandana’s estate
after Chamouille produced a holographic will she claimed was
signed by Mandana. The holographic will gave most of
Mandana’s assets to Chamouille, some assets to their (Mandana
and Chamouille’s) parents, and almost nothing to Mandana’s
husband, Kirk Brown (Brown). Brown filed two petitions to
contest the will, alleging the holographic will was a forgery. The
probate court dismissed each petition because Brown did not
serve all interested parties. Chamouille filed a request to
approve her final accounting. Brown did not object to the
accounting, and the probate court entered a final distribution
order. Brown appeals from that order. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Chamouille Files a Probate Petition
Brown and Mandana married in 2015, and Mandana died
in January 2018. In February 2018 Chamouille filed a petition to
admit Mandana’s will to probate, attaching the holographic will
Chamouille alleged Mandana wrote and signed in January 2016.
The will gave Mandana’s residential property on Jasmine Avenue
in Los Angeles (by far her most valuable asset) to Chamouille,
her jewelry to Chamouille’s daughter, and her car to Nasrin
Mohebkhosravi, Mandana and Chamouille’s mother. The will
also gave three bank accounts and a pension plan to Chamouille,
Nasrin, and Ali Kabiri, Chamouille and Mandana’s father. The

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will gave Brown some of Mandana’s household items and
appliances, to “be decided” by Chamouille, Nasrin, Ali, and
Brown “among themselves.” Pursuant to Chamouille’s request,
the probate court appointed her special administrator of the
estate.

B. Brown Unsuccessfully Attempts To Contest the Will
In April 2018 Brown, represented by the first of three
attorneys who would represent him in the probate proceedings,
filed a separate probate petition, alleging Mandana died intestate
and asking the probate court to appoint him administrator of her
estate. The probate court denied the petition without prejudice,
and Brown did not refile it. In May 2018 Brown filed a petition
contesting the holographic will, but he did not serve the petition
on all interested parties. At Brown’s request, the court appointed
a forensic handwriting expert to examine the holographic will.
The expert ultimately concluded there was a “strong probability
that [Mandana] did author” the will.
At some point prior to August 2018, Brown’s attorney
stopped representing him. By October 2018 Brown was still
representing himself and had not properly served his petition to
contest the holographic will. The probate court denied Brown’s
petition without prejudice, admitted the holographic will, and
appointed Chamouille administrator of the estate. The court,
however, ruled Brown could file and serve a new petition to
contest the will.
In December 2018 Brown, now represented by his second
attorney, filed a new petition to contest the will and asked the
court to appoint a new forensic handwriting expert to examine
the holographic will. Again, however, Brown did not serve the

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petition on all interested parties. In May 2019 the court
authorized a new expert to examine the will. According to
Brown’s second attorney, the expert reviewed Mandana’s
signatures and handwriting samples and reached an opinion that
was “not favorable to [Brown].”
Brown’s second attorney also withdrew, and Brown
retained a third attorney in June 2019. The probate court denied
Brown’s petition to contest the will, again without prejudice,
because Brown still had not served all interested parties. Brown
did not file another petition to contest the will.

C. The Court Approves Chamouille’s Accounting and
Enters a Final Distribution Order
In November 2019 Chamouille filed a request to approve
her accounting and to close the estate. According to Chamouille,
the estate initially had total assets of $1,705,990, $1,635,000 of
which was the value of the Jasmine Avenue property (which
Mandana left to Chamouille). The value of the household
furnishings (which Mandana left in part to Brown) was $1,000.
At the time Chamouille filed her request to approve the final
accounting, the value of the estate had decreased to $1,647,197.
Chamouille also asked the court to approve over $100,000 in fees
and costs for her attorneys and $9,400 in reimbursement for her.
Brown did not object to the accounting or appear at the
January 2020 hearing on Chamouille’s request to approve the
accounting. On March 26, 2020 the probate court granted
Chamouille’s request and entered a final distribution order. In
addition to approving the accounting, the court ordered Brown to
vacate the Jasmine Avenue property.

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 Three weeks later Brown filed a notice of appeal that did
not specify which order Brown was appealing from. The notice of
appeal cited Code of Civil Procedure section 917.4, which states
that, absent a bond, the perfecting of an appeal does “not stay
enforcement of the judgment or order in the trial court if the
judgment or order appealed from directs the sale, conveyance or
delivery of possession of real property which is in the possession
or control of the appellant or the party ordered to sell, convey or
deliver possession of the property . . . .”

DISCUSSION

A. Appealability

1. Brown May Appeal from the Final Distribution
Order
Chamouille contends this court does not have jurisdiction
to hear Brown’s appeal because the notice of appeal was
defective. While the notice of appeal may not have been as
specific as it might have been had an attorney prepared it, it was
good enough.
A notice of appeal must “identif[y] the particular judgment
or order being appealed” (Cal. Rules of Court, rule 8.100(a)(2)),
and Brown’s did not. But “‘“notices of appeal are to be liberally
construed so as to protect the right of appeal if it is reasonably
clear what [the] appellant was trying to appeal from, and where
the respondent could not possibly have been misled or
prejudiced.’”” (K.J. v. Los Angeles Unified School Dist. (2020)
8 Cal.5th 875, 882; see Verceles v. Los Angeles Unified School
Dist. (2021) 63 Cal.App.5th 776, 783.) “Once a notice of appeal is

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timely filed, the liberal construction requirement compels a
reviewing court to evaluate whether the notice, despite any
technical defect, nonetheless served its basic function—to provide
notice of who is seeking review of what order or judgment—so as
to properly invoke appellate jurisdiction.” (K.J., at p. 883.)
Although Brown did not cite the specific order he was
appealing from, he did cite Code of Civil Procedure section 917.4,
which, as stated, governs stays in appeals from orders directing
the conveyance and delivery of possession of real property. The
March 26, 2020 order, which the probate court entered three
weeks before Brown filed the notice of appeal, authorized
Chamouille to take possession of the Jasmine Avenue property,
directed that the property was “to be titled in the name of”
Chamouille, and stated Brown had “no legal right to live at” the
property and had to “vacate” the property. Liberally construed,
the notice of appeal referred to, and provided sufficient notice
Brown was appealing from, the March 26, 2020 order.
Moreover, in designating the record on appeal, Brown
stated he was appealing from an order dated March 28, 2020.
(See C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th
688, 697, fn. 7 [“Although [the appellants] failed to specify the
date of the order being appealed, there is no question they sought
review of . . . the only appealable order included in their
designation of the record on appeal.”]; D’Avola v. Anderson (1996)
47 Cal.App.4th 358, 362 [“[i]n determining whether a respondent
has been misled by errors on the face of the notice of appeal, a
reviewing court may consider the contents of the designation of
record”].) There was no March 28, 2020 order. But under the
circumstances, it was reasonably clear Brown was referring to

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the March 26, 2020 order, and Chamouille was not prejudiced by
any defect in the notice of appeal.

2. Brown May Not Appeal from the Other Orders
Discussed in His Brief
In his brief, Brown discusses several other orders: the
orders denying his petitions to contest the will; an order, entered
after the final distribution order, denying Brown’s motion for an
order “granting him rights to his music” and ruling “Brown’s
music was not part of the estate”; and an order, also entered after
the final distribution order, sanctioning Brown $31,000. None of
these orders is appealable.
An order denying a petition to contest a will is not
appealable; instead, an aggrieved party may challenge the order
in an appeal “from an order admitting the will to probate.”
(Estate of Patterson (1934) 220 Cal. 370, 371; see Estate of Weber
(1991) 229 Cal.App.3d 22, 24 [“[a] dismissal of a contest filed
before a will is admitted to probate is not . . . appealable”]; Estate
of Herrington (1947) 79 Cal.App.2d 389, 390 [order granting
motion for nonsuit on a will contest is not appealable but is
“reviewable on appeal from an order admitting the will to
probate”]; see also Prob. Code, § 1303, subd. (b) [order admitting
or refusing to admit a will to probate is appealable].)1 In October
2018 the probate court denied Brown’s first petition to contest the
will, and in December 2018 the court admitted the will to
probate. Brown could have challenged the order denying his
petition to contest the will in an appeal from the December 2018
order, but Brown did not appeal from that order. (See Estate of

1 Undesignated statutory references are to the Probate Code.

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Gilkison (1998) 65 Cal.App.4th 1443, 1450, fn. 5 [the “orders
listed as appealable in the Probate Code must be challenged
timely or they become final and binding,” and they “may not be
collaterally attacked in a subsequent appeal from the final order
of distribution”]; see also Estate of Reed (2017) 16 Cal.App.5th
1122, 1127 [“‘Once a final, appealable order or judgment has been
entered, the time to appeal begins to run.’”].)2
Brown’s attempt to appeal from the other two orders he
mentions in his opening brief—the order determining Brown’s
music was not part of the estate and the order imposing
monetary sanctions—fares no better. Neither order is before this
court. According to Brown, the probate court entered both orders
in or around October 2020—six months after he filed his notice of
appeal (and three months after he filed his notice designating the
record on appeal). Brown cites no authority that would allow us
to construe his notice of appeal to refer to these orders, which the
probate court entered after Brown filed his notice of appeal, or
that these orders are appealable (See Estate of Allen (1917)
175 Cal. 356, 357 [it is a “well-settled rule that the appellate
jurisdiction in probate matters extends only to such orders and
judgments as are specified” by statute]; Estate of Dito (2011)
198 Cal.App.4th 791, 799, fn. 5 [“In probate matters, there is no
right of appeal unless the Probate Code specifically authorizes an
appeal from the challenged order.”].)

2 Several months after the court admitted the will to probate,
Brown filed his second petition to contest the will. The court
denied the petition in July 2019. Even assuming Brown could
have appealed from the court’s July 2019 order, Brown did not
timely appeal from that order.

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 B. Brown Has Not Shown the Probate Court Erred in
Entering the Distribution Order

1. The Probate Court Did Not Violate Brown’s Due
Process Rights
Brown argues the probate court violated his due process
rights by refusing to permit his (third) attorney to “enter his
appearance for Brown at the March 26, [2020] accounting
hearing.” Generally, “‘[w]e review procedural due process claims
de novo because “the ultimate determination of procedural
fairness amounts to a question of law.”’” (Severson & Werson,
P.C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938, 944; see Brown
v. City of Los Angeles (2002) 102 Cal.App.4th 155, 168 [“‘“Because
[the appellant’s] contention regarding procedural matters
presents a pure question of law involving the application of the
due process clause, we review the trial court’s decision de
novo.”’”].) Had the probate court actually refused to allow
Brown’s attorney to appear at the hearing, the court may have
violated Brown’s due process rights. (See Roa v. Lodi Medical
Group, Inc. (1985) 37 Cal.3d 920, 925 [“Although the right to be
represented by retained counsel in civil actions is not expressly
enumerated in the federal or state Constitution, our cases have
long recognized that the constitutional due process guarantee
does embrace such a right.”]; Oliveros v. County of Los Angeles
(2004) 120 Cal.App.4th 1389, 1398 [“A civil litigant has a
constitutional right to be represented by counsel at trial.”]; Vann
v. Shilleh (1975) 54 Cal.App.3d 192, 200 [“There is a
constitutional basis for the right to counsel in noncriminal
proceedings and, in its narrowest definition, it is the right to
appear by counsel in any adversary proceedings in which the

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adversary party has the benefit of the right to counsel.”].) The
problem for Brown is that there is no evidence this occurred.
Brown cites nothing in the record showing that the court refused
to allow him or his attorney to appear at the hearing on
Chamouille’s request for an order approving her accounting. (See
Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 [“the burden is on
an appellant to demonstrate, on the basis of the record presented
to the appellate court, that the trial court committed an error
that justifies reversal of the judgment”]; Menges v. Department of
Transportation (2020) 59 Cal.App.5th 13, 27 [“‘“To demonstrate
error, appellant must present . . . citations to facts in the record
that support the claim of error.”’”].)
Nor does the record support Brown’s contention. The
transcript reflects that neither Brown nor his attorney appeared
at the hearing, but nothing suggests the court refused to allow
them to appear. Brown’s contention is also belied by the probate
court’s other actions. After Brown’s first attorney ceased
representing him, the probate court continued the proceedings for
over two and a half months to allow Brown to find a new
attorney. And the probate court allowed two additional attorneys
to represent Brown, and allowed Brown to refile his petition to
contest the will.
Brown’s argument the probate court did not allow him or
his attorney to file objections to Chamouille’s accounting fails for
the same reasons. Chamouille served Brown, through his
attorney, with her accounting and a proposed final distribution
order. Brown does not cite anything in the record showing, nor
does the record suggest, the probate court did not allow Brown to
file objections.

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 2. Brown Has Not Shown the Probate Court Erred
in Approving the Accounting
Brown also takes issue with certain portions of the
distribution order. In particular, Brown argues the probate court
“failed to assess” whether he had a community property interest
in the Jasmine Avenue residence, the Wells Fargo bank account,
and Mandana’s pension plan. (See Estate of Fincher (1981)
119 Cal.App.3d 343, 349 [surviving spouse may assert a claim to
community property in a proceeding to determine distribution
rights]; Estate of Hartnett (1957) 155 Cal.App.2d 280, 283
[same].) An order directing distribution of property from a
decedent’s estate is appealable. (§ 1303, subd. (g).)
There are several problems with Brown’s argument. First,
Brown did not make the argument in the probate court, thus
forfeiting it. Chamouille’s accounting stated that all of the assets
described in her accounting, including the Jasmine Avenue
property, were Mandana’s separate property. As discussed,
Brown did not object. (See Estate of Herzog (2019)
33 Cal.App.5th 894, 907 [failure to raise an argument in the
probate court forfeits the issue on appeal]; Estates of Collins &
Flowers (2012) 205 Cal.App.4th 1238, 1256 [“‘“if [a] new theory
contemplates a factual situation the consequences of which are
open to controversy and were not put in issue or presented at
trial, the opposing party should not be required to defend against
it on appeal”’”].)
Second, even if Brown had not forfeited the argument, he
has not shown the probate court erred. Brown presented no
evidence he had a community property interest in the Jasmine
Avenue property, the Wells Fargo account, or Mandana’s

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pension.3 He did not show, for example, he or Mandana
contributed community funds to these assets, much less how
much in community funds either one of them contributed. Brown
cannot maintain on appeal that the probate court should have
considered an argument he never raised before the court entered
the distribution order. Brown must show the probate court erred,
for example, by including in the distribution order property that
was not part of the estate. (See Estates of Collins & Flowers,
supra, 205 Cal.App.4th at p. 1246 [“We presume the trial court’s
factual findings are supported by the evidence, and it is the
appellant’s burden to show that they are not.”].) He has not.

3 The distribution order does not appear to include the Wells
Fargo bank account or Mandana’s pension. While the order
states that Chamouille is authorized to disburse funds from the
Wells Fargo account and the pension, the portion of the court’s
order listing the estate’s assets does not include either. And
Chamouille’s accounting did not list funds from the Wells Fargo
account or the pension as an asset of the estate. In fact, counsel
for Chamouille represented to the court during one of the
hearings: “Just to be clear, Your Honor, pension funds are not
subject to the probate . . . . They are outside of the probate
estate.”

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 DISPOSITION

The order is affirmed. Brown’s motion to augment the
record is denied. Chamouille is to recover her costs on appeal.

SEGAL, Acting P. J.

We concur:

FEUER, J.

IBARRA, J. *

* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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