Estate of Franco

Filed 1/30/23
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

ESTATE OF RAUL SAUSEDO
FRANCO, DECEASED.

ROBERTA MORENO, et al.,
Petitioners and Respondents,
v. A165840
TAMARA L. BERTUCCIO, as Special (Santa Clara County
Administrator, Super. Ct. No. 18PR182626)
Objector and Appellant.

In this probate proceeding, petitioners and respondents Roberta
Moreno and Cynthia Moreno (“the Morenos”) filed a joint motion for
summary judgment seeking a determination that Frank G. Bertuccio
(“Bertuccio”) 1 was not an heir entitled to an intestate share of the Estate of
Raul Sausedo Franco, also known as Roy Raul Hector Franco (“Franco”).
The probate court granted the motion for summary judgment. The
court found Bertuccio to be the child of a marriage between his mother

1
Bertuccio died during the pendency of the litigation in the probate
court. Bertuccio’s half-sister, Tamara L. Bertuccio, was appointed special
administrator of Bertuccio’s estate and substituted in as a party to the
proceeding. For ease of convenience, we refer to Bertuccio and his estate
collectively as “Bertuccio.” Because some of the persons referred to in this
opinion have the same last name, we use first names for clarity and by doing
so intend no disrespect.

1
Marilyn and Frank C. Bertuccio, Senior (“Frank, Sr.”) under the marital
presumption set forth in Family Code section 7540, subdivision (a), which
provides, in pertinent part, that “the child of spouses who cohabited at the
time of conception and birth is conclusively presumed to be a child of the
marriage.” Based on that finding, the court then held Bertuccio, as the child
of the marriage of Marilyn and Frank, Sr., was not entitled to prove Franco
was his natural parent from whom he could inherit in intestate succession
under Probate Code section 6453, subdivision (b)(2). 2
As a preliminary matter, we agree with the probate court that our
Supreme Court’s decision in Estate of Cornelious (1984) 35 Cal.3d 461
(Cornelious) remains good law. Hence, if Bertuccio were found to be a child of
the marriage of Marilyn and Frank, Sr. pursuant to the Family Code section
7540 marital presumption, he would not be entitled to prove Franco was his
natural parent under Probate Code section 6453, subdivision (b)(2).
However, we find the probate court erred in applying the Family Code
section 7540 marital presumption without first making the requisite finding
that Marilyn and Frank, Sr. were cohabiting at the time of Bertuccio’s
conception and birth. We shall therefore reverse the order granting summary
judgment and remand the matter for further proceedings consistent with this
opinion.
FACTUAL AND PROCEDURAL BACKGROUND 3
In December 1957, Marilyn and Frank, Sr. were married. Frank, Sr.
was listed on Bertuccio’s birth certificate as the father, accepted Bertuccio

2
For clarity, the opinion will use full statutory references to the sections
of the Family Code and Probate Code.
3 At the request of the Morenos, and without objection, the probate court
took judicial notice of certain documents including (1) Franco’s death
certificate and (2) an October 18, 2018 declaration filed by Bertuccio in this
probate proceeding. At the request of the Morenos, and over the objection of

2
into his home, and held Bertuccio out as his own. Marilyn and Frank, Sr.
separated in September 1966 and were granted an interlocutory judgment of
divorce in March 1967. A final judgment of divorce was filed in November
1967. As part of the interlocutory judgment of divorce incorporated in the
final judgment of divorce, Bertuccio was identified as their minor child and
Frank, Sr. was directed to pay child support. Marilyn subsequently secured
an order increasing the child support to be paid by Frank, Sr.
In the mid-1980’s, when Bertuccio was an adult, he confronted his
mother about his parentage. Marilyn allegedly told him that Franco was his
biological father. Marilyn stated that during the marriage she and Frank, Sr.
had a “falling out [and] separated” and Marilyn subsequently dated Franco.
During her pregnancy with Bertuccio, Marilyn reunited with Frank, Sr.

Bertuccio, the probate court also took judicial notice of (1) Bertuccio’s birth
certificate; (2) the complaint for divorce filed by Frank, Sr; (3) the answer to
the complaint for divorce filed by Marilyn; (4) and (5) the interlocutory
judgment of divorce and the final judgment of divorce between Marilyn and
Frank, Sr.; and (6) (7) and (8) two affidavits for an increase in child support
filed by Marilyn and an order increasing child support filed in the divorce
action between Marilyn and Frank, Sr. The probate court took judicial notice
of the court documents with the following caveat: “[W]hile the Court is free to
take judicial notice of the existence of a document in a court file, the Court
may not take judicial notice of the truth of hearsay statements contained
therein. [Citation.] With respect to any and all court records, the law is
settled that ‘the court will not consider the truth of the document[’]s contents
unless it is an order, statement of decision, or judgment. [Citation.]’
[Citation] ‘Otherwise judicial notice for the truth of the content of court
records is not appropriate either because the truth of the content is
reasonably subject to dispute [citation], or because the content is hearsay
[citation].’ [Citation].” The probate court did not rule on Bertuccio’s request
for judicial notice of a court document or the parties’ separate objections to
“several pieces” of evidence submitted by the parties, finding that the
document and evidence were not relevant to the court’s decision. On appeal,
the parties do not challenge the probate court’s evidentiary rulings.

3
According to Marilyn, she, Frank, Sr., and Franco, all agreed that Frank, Sr.
and Marilyn would raise Bertuccio as their own. After learning that Franco
was his biological father, Bertuccio connected with Franco. They became
involved in each other’s lives, and Franco told his girlfriend and his neighbor
that Bertuccio was his son.
On December 18, 2017, Franco died intestate. Marilyn and Frank, Sr.
predeceased Franco. Franco was survived by his sister Roberta Moreno, a
niece Cynthia Moreno, and Franco’s two half-brothers.
On January 11, 2018, Bertuccio filed a petition to administer Franco’s
estate, and letters of administration were issued to him on April 24, 2018.
Franco’s sister Roberta Moreno and niece Cynthia Moreno filed separate
petitions, both seeking to remove Bertuccio as administrator of Franco’s
estate. After Bertuccio died on May 29, 2020, his half-sister was granted
letters of special administration and she substituted into the probate
proceeding to represent Bertuccio’s estate.
At a contested hearing on June 2, 2021, the probate court considered
the Morenos’ joint motion for summary judgment on their removal petitions,
by which the Morenos sought a declaration that Bertuccio was not an heir
entitled to inherit from Franco’s estate under intestate succession. The court
granted the Morenos’ motion, holding that because Bertuccio was a child of
the marriage of Marilyn and Frank, Sr. under the Family Code section 7540
marital presumption, the Supreme Court’s decision in Cornelious, supra, 35
Cal.3d 461, barred Bertuccio from proving Franco was his natural parent
from whom he could inherit in intestate succession under Probate Code
section 6453, subdivision (b)(2).
This appeal ensued. (Prob. Code, § 1303, subd. (f) [“[w]ith respect to a
decedent’s estate,” an appeal may be taken from the grant of an order

4
“[d]etermining heirship, succession, entitlement, or the persons whom
distribution should be made”]; see Estate of Miramontes-Najera (2004) 118
Cal.App.4th 750, 755 [“[a]n order is appealable, even if not mentioned in the
Probate Code as appealable, if it has the same effect as an order the Probate
Code expressly makes appealable”; “we may consider orders a final judgment
for purposes of appeal when as here, they have all the earmarks of a final
judgment”].) 4
DISCUSSION
A. Applicable Law
The general rules governing intestate succession provide that any part
of a decedent’s estate not disposed of by will passes to the decedent’s heirs.
(Prob. Code, § 6400.) An heir is defined as “any person . . . who is entitled to
take property of decedent by intestate succession under this code.” (Id., § 44.)
A child is defined as “any individual entitled to take as a child . . . by
intestate succession from the parent which relationship is involved.” (Id.,
§ 26.) As pertinent here, since Franco died without a surviving spouse or
domestic partner, the entire intestate estate would pass “[t]o the issue of the
decedent” (Bertuccio if determined to be an issue of Franco) or, if there is no
issue, “to next of kin” (the Morenos). (Id., § 6402, subd. (a).)

4
Bertuccio’s notice of appeal from the probate court’s June 2, 2021 order
was timely filed in the Sixth District Court of Appeal. On August 6, 2021,
that court requested Bertuccio to show cause why the appeal should not be
dismissed as premature and/or taken from a nonappealable order. Having
considered Bertuccio’s response, it discharged the order to show cause and
allowed the appeal to proceed. On April 1, 2022, this case was fully briefed.
On August 9, 2022, the case was transferred by California Supreme Court
Order from the Sixth District Court of Appeal (where it had been designated
case No. H049297) to the First District Court of Appeal.

5
 Probate Code section 6450 provides that “a relationship of parent and
child exists for the purpose of determining intestate succession by, through,
or from a person in the following circumstances: [¶] (a) The relationship of
parent and child exists between a person and the person’s natural parents,
regardless of the marital status of the natural parents.”
Probate Code section 6453 provides that a natural parent may be
established under the provisions of California’s version of the Uniform
Parentage Act, set forth in Part 3 (commencing with Section 7600) of Division
12 of the Family Code, “except that the relationship may not be established
by an action under subdivision (c) of Section 7630 of the Family Code” (i.e., an
action by a child or a child’s representative) unless “[p]arentage is established
by clear and convincing evidence that the parent has openly held out the
child as that parent’s own.” (Prob. Code § 6453, subd. (b)(2).)
A man is “presumed” to be a child’s natural father if he meets the
conditions in Family Code section 7540. (Fam. Code, § 7611, subd. (a).)
Section 7540 provides, in pertinent part, that “the child of spouses who
cohabited at the time of conception and birth is conclusively presumed to be a
child of the marriage,” commonly referred to as the marital presumption.
(Id., subd. (a).)
B. A Child of a Marriage Under the Family Code Section 7540
Marital Presumption is Barred from Proving a Parent-Child
Relationship Existed with A Deceased Third Person for
Purposes of Inheritance Under Intestate Succession
As a general rule, “[t]here is nothing inherently improper in conferring
a right to inherit from two separate paternal stocks.” (Estate of Bassi (1965)
234 Cal.App.2d 529, 554.) However, our Legislature’s statutory scheme for
intestate succession, as interpreted by our Supreme Court, provides as a

6
matter of policy that a child of a marriage under the Family Code section
7540 marital presumption is barred from proving a parent-child relationship
existed with a deceased third person for purposes of inheritance under
intestate succession. (Cornelious, supra, 35 Cal.3d at pp. 463–464, 466–467.)
In Cornelious, our Supreme Court addressed this issue under Evidence
Code former section 621, subdivision (a), 5 the predecessor statute to the
current Family Code section 7540 marital presumption. (35 Cal.3d at
pp. 462–463.) In that case, Willis Cornelious died intestate, and his sisters
nominated a person to administer his estate. (Id. at p. 463.) Appellant Trudy
Hall applied for letters of administration on the basis that she was a child of
Cornelious and had the right to administer his estate over Cornelious’
siblings or nominee. (Ibid.) After an evidentiary hearing, the trial court
found the requisite parent-child relationship between Hall and Cornelious
did not exist because Hall was conclusively presumed to be the daughter of
David Fuller 6 and the court appointed the sisters’ nominee as administrator
of Cornelious’ estate. (Ibid.)

5
Evidence Code, former section 621, subdivision (a) provided: “Except as
provided in subdivision (b), the issue of a wife cohabiting with her husband,
who is not impotent or sterile, is conclusively presumed to be a child of the
marriage.” Evidence Code, former section 621, subdivision (b) “[a]llow[ed] the
mother or the presumed father to rebut the presumption of subdivision (a) by
presenting blood test evidence of nonpaternity to the court within two years
of the child’s birth.” (Cornelious, supra, 35 Cal.3d at p. 463, fn. 1.)
6
At the hearing, the following facts were established or accepted as
proven: Hall’s mother was married to Fuller. (Cornelious, supra, 35 Cal.3d
at p. 463.) They lived together as husband and wife from the time of their
marriage up to the time of the hearing, including the time when Hall was
conceived. (Id. at pp. 463–464.) Fuller was named as Hall’s father on her
birth certificate. (Id. at p. 464.) Although Fuller was not impotent or sterile
during the time of Hall’s conception, her mother said the spouses were not
having intercourse during that period, and that Cornelious was Hall’s
natural father. (Ibid.) Hall was informed of her paternal parentage when

7
 In rejecting Hall’s “due process attack” on the application of the Family
Code section 7540 marital presumption to bar her right to inherit from
Cornelious, the Supreme Court explained: “The conclusive presumption of
legitimacy . . . is, of course, a rule of substantive law. [Citation.] It codifies
the principle that when husband and wife are living together as such, the
integrity of the family should not be impugned. ‘The husband is deemed
responsible for his wife’s child if it is conceived while they are cohabiting; he
is the legal father and the issue of biological paternity is irrelevant.’
[Citation.]” (Cornelious, supra, 35 Cal.3d at pp. 464–465.) The Supreme
Court noted social policies promoted by the presumption, including the
integrity of the family and the stability of inheritance. (Ibid.)
In weighing Hall’s interest in proving Cornelious was her parent for the
purpose of intestate succession against the state’s interest in preventing her
from rebutting the Family Code section 7540 marital presumption, the
Supreme Court explained as follows:
“In the present case, [Hall’s] private interests are simply not as
weighty as those of putative fathers . . . who [seek] to care for and
nurture their own children. Here, the alleged natural father is dead so
that there is no possibility of an ongoing relationship. All [Hall] can
hope to gain is the right to inherit [Cornelious’] estate, an interest of a
lower order which, of course, is pitted against the competing interests
of [Cornelious’] sisters. [¶] The state’s interests, by contrast, are

she was 15 years old, and from that time until Cornelious’ death in 1980, Hall
visited him, accompanied him on errands, and occasionally stayed overnight
in his home; Cornelious identified Hall as his daughter to his friends. (Ibid.)
Hall continued to live in Fuller’s household until she became emancipated.
(Ibid.) At the time of the hearing Hall was 27 years old and had a family of
her own. (Ibid.) Hall had commenced the probate proceeding without
Fuller’s knowledge, and Fuller died sometime after the hearing without
learning of the proceeding and apparently believing he was Hall’s natural
father. (Id. at p. 464 & fn. 3; see Id. at p. 469 [dissenting opn. by Bird, C.J.].)
There was also evidence demonstrating that it was biologically impossible for
Fuller to be Hall’s natural father. (Id. at p. 464.)

8
 substantial. The policies promoted by the conclusive presumption of
legitimacy are well-served by its application here. The familial
relationship [Hall] had with David Fuller was far more palpable than
the biological relationship she had with Willis Cornelious. [Hall] was
reared and supported by David [Fuller], who was named as her father
on her birth certificate. He was never told of the present proceeding,
and he died thinking he was [Hall’s] father. Now, after 27 years as the
daughter of David Fuller, [Hall] seeks to establish that another man
was her father, and she does so not for filial piety but solely for
financial considerations. Her equities are simply not in the same class
as those of [putative fathers who seek to care and nurture their own
children]. The due process clause does not compel a holding equating
the natural urge to look after one’s flesh and blood with the equally
natural, but somewhat baser, impulse to take care of property one’s
biological father has failed to dispose of by will. In sum, [Hall] has
failed to advance a reason why the Constitution demands that the
legislative judgment concerning her parentage should be voided.”
(Cornelious, supra, 35 Cal. 3d at p. 467.)

We find unavailing Bertuccio’s arguments that Cornelious should not
be followed because of changes to the Probate Code and Family Code and
because “the policy considerations in Cornelious have become moot.”
We start with the well settled maxim that as an intermediate appellate
court we are bound to follow the decisions of our Supreme Court. (See Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [California
Supreme Court decisions “are binding upon and must be followed by all the
state courts of California”].) A year after Cornelious was decided, the
Legislature’s 1983 amendments to the Probate Code became effective
January 1, 1985 (Stats. 1983, ch. 842, §§ 55, 58), yet our high court later cited
Cornelious with approval in Michelle W. v. Ronald W. (1985) 39 Cal.3d 354
(Michelle W.): “In Estate of Cornelious, supra, 35 Cal.3d 461, we held that the
guarantee of due process of law was not offended when a child was precluded
from proving paternity by operation of [Evid. Code former] section 621 [now
Fam. Code, § 7540, subd. (a)].” (Michelle W., supra, at p. 363.) And, over the

9
years, intermediate appellate courts have recognized the continued validity of
Cornelius. For example, in Estate of Carter (2003) 111 Cal.App.4th 1139
(Carter), in determining whether an estate administrator was required to
give notice to potential heirs regarding intestate succession, the appellate
court cited Cornelious for the proposition that there were situations in which
notice was not required due to “bright lines which categorically rule[d] out”
that a person is a heir, such as when a potential heir “must be conclusively
presumed to be someone else’s child because [the child] was conceived by a
wife at a time when she was cohabiting with her husband.” (Carter, supra, at
pp. 1146–1147.)
It is also “a basic rule of statutory construction that the Legislature is
aware of court opinions existing at the time it amends legislation.” (Estate of
Burden (2007) 146 Cal.App.4th 1021, 1030 (Burden).) Since Cornelious has
been decided, the Legislature has not seen fit to either explicitly overrule
Cornelious or to otherwise call into question its ruling. Rather, when the
Legislature has amended the Probate Code provisions governing intestate
succession and the incorporated Family Code provisions it made no
substantive changes in the statutory language extant at the time Cornelious
was decided, thereby leaving intact the court’s ruling that a child of a
marriage under the Family Code section 7540 marital presumption is barred
from proving a parent-child relationship with a deceased third person for
purposes of inheritance under intestate succession. “ ‘The failure of the
Legislature to change the law in a particular respect when the subject is
generally before it and changes in other respects are made is indicative of an
intent to leave the law as it stands in the aspects not amended.’ ” (Estate of
McDill (1975) 14 Cal.3d 831, 837–838.) And, “the Legislature is deemed to be
aware of . . . judicial decisions . . . and to have . . . amended statutes ‘ “in light

10
of such decisions as have a direct bearing upon them.” ’ ” (People v. Overstreet
(1986) 42 Cal.3d 891, 897.)
Concededly, some of the social policies sought to be promoted by the
Cornelious court, i.e., “protection of the welfare of children by avoiding the
stigma of illegitimacy” (Cornelious, supra, 35 Cal.3d at p. 465) have been
addressed by the Legislature through the elimination, in significant ways, of
the legal distinction between marital and nonmarital children. We also note
that “[t]he law concerning children born to married women when there is a
dispute over paternity is a latter-day admixture of ancient common law
presumptions and ideas, statutes, statutory interpretation and legislature
acquiescence, common law accretion and constitutional imperatives, all in the
face of [recent] . . . technological ability, developed . . . to positively identify
who a biological father really is.” (Brian C. v. Ginger K. (2000) 77
Cal.App.4th 1198, 1202–1203.) And “the Legislature has responded to new
scientific advances and new ways people now choose to form relationships.”
(C.A. v. C.P. (2018) 29 Cal.App.5th 27, 34.)
Nonetheless, and fundamentally, the Legislature’s “legal changes
express a consistent desire to preserve” the integrity of the parent-child
relationship between married spouses and their children conceived and born
when the spouses are living together as such. (C.A. v. C.P., supra, 29
Cal.App.5th at p. 34.) To implement that continuing social policy, the
Legislature has specifically chosen to retain the Family Code section 7540
marital presumption and continues to treat it separately from other
presumptions of parentage. (See, e.g., Fam. Code, § 7612, subds. (a), (b).)
And, as pertinent here, Family Code section 7630, subdivision (c), which
allows a child to file an action to determine parentage, specifically excludes
cases where a child is a child of a marriage under the Family Code section

11
7540 marital presumption: “Except as to cases coming within Chapter 1
(commencing with Section 7540) of Part 2 . . , an action to determine
parentage may be brought by the child [or] the personal representative of the
child . . . .” (Fam. Code, § 7630, subd. (c); italics added.) Given the statutory
language, the Legislature plainly believed that a child’s right to file an action
to determine parentage would be subject to the separate provisions governing
cases coming within the sections of the Family Code, commencing with
section 7540, including any case law interpreting those sections, which here
includes Cornelious.
Bertuccio also argues that, despite Cornelious, he is entitled to prove
Franco is his natural parent for purposes of intestate succession as the child
was allowed to do in Burden, supra, 146 Cal.App.4th 1021. However, as
Bertuccio candidly concedes, the child in Burden was not conceived during
the marriage of his mother and her husband, and hence, “there could be no
conclusive presumption of parentage.” Because the Burden court had no
reason to discuss and made no mention of the Family Code section 7540
marital presumption or Cornelious, we see no need to further address the
case. (See In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388 [“ ‘cases are
not authority for propositions not considered’ ”].)
We conclude our discussion by noting that we are not persuaded by
Bertuccio’s arguments that the ruling in Cornelious frustrates the laws of
intestacy and therefore should not be followed by the court. “Since the right
of inheritance is not an inherent or natural right but one which exists only by
statutory authority, the law of succession is entirely within the control of the
Legislature.” (Estate of Perkins (1943) 21 Cal.2d 561, 569.) Bertuccio’s
arguments are ones to be made to the Legislature or our Supreme Court.

12
C. Summary Judgment Was Improperly Granted as the Probate
Court Applied the Family Code Section 7540 Marital
Presumption Without Making the Requisite Finding that
Marilyn and Frank, Sr. Were Cohabiting as Husband and Wife
at the Time of Bertuccio’s Conception and Birth
We agree with Bertuccio that summary judgment was improperly
granted as the probate court applied the Family Code section 7540 marital
presumption without making the requisite finding that Marilyn and Frank,
Sr. were cohabiting as husband and wife at the time of Bertuccio’s conception
and birth.
At the hearing on the motion for summary judgment, the parties
addressed Family Code section 7540. The Morenos argued Bertuccio bore the
burden of offering admissible evidence to show that Marilyn and Frank, Sr.
had not been cohabiting at the time of Bertuccio’s conception and birth 7 and
that Bertuccio’s declaration describing what he had been told by Marilyn
concerning his conception and birth was insufficient to meet his burden as it
was inadmissible hearsay. In response, Bertuccio did not address the burden

7
We note that the Morenos, as summary judgment movants, had the
burden of proving that there were no genuine triable issues of fact and that
they were therefore entitled to judgment as a matter of law. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845 (Aguilar).) Moreover, as the
proponents of the Family Code section 7540 marital presumption, the
Morenos had the burden of proving the foundational fact of cohabitation by a
preponderance of the evidence. (See United Sav. & Loan Assn. v. Reeder Dev.
Corp. (1976) 57 Cal.App.3d 282, 300 [“[t]he proponent of the presumption has
the burden of proving, by a preponderance of the evidence, the foundational
facts of the presumption”].) If a party “who would bear the burden of proof by
a preponderance of the evidence at trial moves for summary judgment,” the
party “must present evidence that would require a reasonable trier of fact to
find any underlying material fact more likely than not.” (Aguilar, supra, at
p. 845.)

13
of proof but informed the court that a declarant’s statements concerning
family history were admissible as an exception to the hearsay rule under
Evidence Code sections 1310 and 1311.
Following counsel’s arguments, the probate court did not specifically
rule on the Morenos’ hearsay objection to certain statements in Bertuccio’s
declaration (of which the court had taken judicial notice), nor did the court
otherwise make any finding on the issue of the spouses’ cohabitation at the
time of Bertuccio’s conception and birth; the court said only that Marilyn and
Frank, Sr. were married at the time of Bertuccio’s conception and birth. In
its written order, the court again only stated the spouses were married at the
time of Bertuccio’s conception and birth and made no finding regarding the
cohabitation of Marilyn and Frank, Sr.
As is evident by the record, and conceded by the Morenos at oral
argument, the probate court did not explicitly make the requisite finding
regarding the spouses’ cohabitation at the time of Bertuccio’s conception and
birth before applying the Family Code section 7540 marital presumption. In
their briefing and at oral argument, however, the Morenos contend that,
based on their evidence that was admitted in the probate court, we can
conclude the probate court made an implied finding of cohabitation. We
disagree.
The Morenos ask us to consider the judicially noticed contents of the
judgments and order filed in the divorce and child support proceedings
between Marilyn and Frank, Sr., and the undisputed facts that (1) Marilyn
and Frank, Sr. were married at the time of Bertuccio’s conception and birth
and (2) Frank, Sr. was listed as the father on the child’s birth certificate.
However, the contents of the divorce judgments and child support order and

14
the above-described undisputed facts say nothing about the spouses’ living
arrangements at the time of Bertuccio’s conception and birth.
The Morenos also ask us to consider the verified statements made by
Frank, Sr. and Marilyn in their court documents, in which they averred
Bertuccio is a child or issue of the marriage. As a preliminary matter, we
note the probate court did not take judicial notice of the hearsay statements
contained in those documents. (See StorMedia Inc. v. Superior Court (1999)
20 Cal.4th 449, 457, fn. 9 [“[w]hen judicial notice is taken of a document . . .
the truthfulness and proper interpretation of the document are disputable”].)
And, even assuming we considered the spouses’ verified statements in their
court filings, we are not persuaded by the Morenos’ assertion that the
spouses’ statements concerning Bertuccio’s status as their child “could not
have been possible” if the spouses had not been “cohabiting” at the time of the
child’s conception and birth. That is not the only reasonable inference to be
drawn as the statements say nothing about the spouses’ living arrangements
at the time Bertuccio was conceived and born. (See Steven W. v. Matthew S.
(1995) 33 Cal.App.4th 1108, 1114 [“[t]he married couple must be cohabiting
to trigger” conclusive presumption under section 7540; “[c]ohabitation implies
more than a stolen weekend or a sexual encounter; it is living together in a
marital household, sharing day-to-day life”]; see Kusior v. Silver (1960) 54
Cal.2d 603, 616 [cohabitation means “ ‘living together as husband and
wife’ ”].)
In sum, because the Morenos’ admitted evidence in the probate court at
best raises a triable issue but does not permit a finding of cohabitation as a
matter of law, we cannot uphold the probate court’s decision premised on the
Family Code section 7540 marital presumption. Accordingly, we shall
reverse the order granting summary judgment.

15
 As the parties and probate court did not focus on the issue of
cohabitation, on remand the court, in its discretion, may allow the Morenos to
renew their motion for summary judgment. (See TRB Investments, Inc. v.
Fireman’s Fund Ins. Co. (2006) 40 Cal.4th 19, 31 [where court determined the
relevant inquiry was different from the one addressed by parties, matter was
remanded with directions to allow for the filing of a new summary judgment
motion so the parties could elicit key facts that might have a bearing on the
relevant inquiry as determined by the court].) A renewed motion would allow
the probate court to resolve the motion on the merits in light of our decision
that the Family Code section 7540 marital presumption requires a finding
that Marilyn and Frank, Sr. were cohabiting as husband and wife when
Bertuccio was conceived and born. (See Gailing v. Rose, Klein & Marias
(1996) 43 Cal.App.4th 1570, 1579 [because the provisions of Code Civ. Proc.
§ 1008 are not jurisdictional, the trial court had broad discretion to hear an
estate’s renewed summary judgment motion, even if statutory requisites for
renewal were not met].)
DISPOSITION
The June 2, 2021 order is reversed and the matter is remanded for
further proceedings consistent with this opinion. Objector and Appellant
Tamara L. Bertuccio, as Special Administrator, is awarded costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1); see also, Cal. Rules of Court, rule
8.278(a)(4) [“[i]n probate cases, the prevailing party must be awarded costs
unless the Court of Appeal orders otherwise, but the superior court must
decide who will pay the award”].)

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 _________________________
Petrou, J.

WE CONCUR:

_________________________
Tucher, P.J.

_________________________
Fujisaki, J.

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Trial Court: Santa Clara County Superior Court

Trial Judge: Hon. Julie Emede

Counsel: Hackard Law, Michael Hackard and Brian Geremia; Klaus
J. Kolb, Klaus J. Kolb for Petitioners and Respondents.

Hansen Law Firm, Craig A. Hansen, Philip E. Yeager, and
Collin D. Greene; Carter, Dougherty & Keiley, Scott Carter
and Theresa McGuire for Objector and Appellant.

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