Westamerica Bank v. Morales CA1/1

Filed 2/24/23 Westamerica Bank v. Morales CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION ONE

WESTAMERICA BANK, as Trustee,
etc.,
Plaintiff and Respondent, A165492

v. (Solano County
GABRIELLA MORALES, Super. Ct. No. FPR049473)
Defendant and Appellant.

Probate Code section 6452, subdivision (a)(2)1 provides that a parent of
a child who does not “acknowledge” his or her child is barred from inheriting
from the child’s estate under the laws of intestate succession. In this
inheritance dispute concerning the remainder of a special needs trust
following the death of the child who was the trust’s beneficiary, the probate
court ruled that Jorge Ovalles’s participation in paternity proceedings
qualified as an acknowledgment under this provision, rendering him eligible
to inherit one-half of the trust’s residue. Appellant Gabriella Morales, the
mother of the deceased child, contends that the probate court erred and that
Ovalles should be disinherited. We agree and reverse.

1 All undesignated statutory references are to the Probate Code.

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 I. FACTUAL AND PROCEDURAL BACKGROUND
Morales and Ovalles were in a dating relationship when she discovered
she was pregnant in February 2014. When she told Ovalles she was
pregnant, he asked her to take the “morning-after pill.” She refused, and he
stopped communicating with her.
Morales’s daughter, Olivia Isabella Morales, was born in November
2014. Tragically, she suffered severe injuries during her delivery. These
injuries led to kidney failure which necessitated dialysis and a kidney
transplant. She also required a central line for medications, a gastrostomy
tube for feedings, and a peritoneal catheter for dialysis. Following Olivia’s
birth, Morales called Ovalles and told him that the child had suffered birth
trauma and asked for his help. He reportedly told her that he did not want to
have anything to do with the child.
In March 2015, Morales filed a parentage action against Ovalles in
Kern County Superior Court. She requested sole legal and physical custody.
In his response, Ovalles did not seek legal custody, physical custody, or
visitation. He indicated that he was “not certain” if he was the child’s father.
He reportedly requested DNA testing.2
During court-ordered mediation held the following month, the parties
agreed that Morales would have sole legal and physical custody and that
Ovalles would have no visitation. The mediation agreement, which was
signed by Ovalles as respondent, states that the “father shall have no visits
with the child.” There is no indication in the record as to who prepared the
mediation agreement, but, presumably, it was the mediator.

2In April 2015 Olivia reportedly underwent the requested DNA testing.
There is no evidence in the record as to the results of this testing.

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 On August 20, 2015, the Kern County Superior Court filed its order
granting sole legal and physical custody of Olivia to Morales. No visitation
was granted to Ovalles. Ovalles was ordered to pay $1,788 in monthly child
support, which he apparently paid through a wage garnishment. The
computerized DissoMaster report used to calculate child support speaks in
terms of “mother” and “father.”
In September 2017, proceeds from the settlement of a lawsuit filed on
behalf of Olivia were used to create the Olivia Morales Special Needs Trust
(Trust). The Trust received a total of $921,383.93 in settlement proceeds.
The Trust’s funds were to be used to supplement the costs of equipment and
services related to Olivia’s disabilities. Respondent Westamerica Bank
(Westamerica) was appointed to serve as trustee for the Trust.
The Trust provided that it would be terminated upon Olivia’s death.
The Trust’s funds would be used to reimburse governmental agencies for
amounts spent on Olivia’s medical care, and to pay reasonable expenses
incurred in finalizing the Trust’s administration. The remaining balance was
to be distributed to Olivia’s heirs, who were to be determined according to the
laws of intestate succession (§ 6400, et seq.). The determination of the heirs’
respective shares would be made by the trustee and would be conclusive upon
all such heirs and other persons interested in the Trust.
In January 2020, appellant contacted Ovalles to let him know that
Olivia had been diagnosed with leukemia and had been hospitalized. Ovalles
reportedly replied, “Okay.” Olivia died in November 2020.
In March 2021, Westamerica filed a petition for approval of its final
accounting, for termination of the Trust, and for instructions regarding final
distribution of the Trust. The petition indicated that approximately
$1 million in assets remained in the Trust as of December 31, 2020.

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Westamerica noted that Morales claimed Ovalles was not entitled to inherit
from the Trust. Citing to section 6452, Westamerica requested instructions
from the court as to whether the Trust’s residue should be distributed in
equal shares to Morales and Ovalles. The following month, Westamerica
filed a supplemental petition that included a copy of the August 2015 order in
the Kern County family law proceeding.
In April 2021, Ovalles filed a request in the family law proceeding for
an order terminating child support due to the death of the child. In his
request, he referred to himself as “Respondent/Father.” He asked to be
reimbursed for support payments that were made following Olivia’s death.
Westamerica’s petition was heard on June 16, 2021. In its pre-grant
order, the probate court had expressed its view that section 6452 did not
apply and thus the Trust’s residue should be distributed equally between
Morales and Ovalles. Morales’s attorney argued that section 6452 should
apply because Ovalles had never acknowledged Olivia within the meaning of
that provision. The court took the issue under submission.
On June 30, 2021, the probate court filed its order ruling that no
evidence had been presented to show that section 6452 applied. The court
acknowledged Morales’s arguments that, despite paternity testing, paternity
had never been established in family court; that Ovalles had expressed
uncertainty as to whether he was Olivia’s father; that Ovalles had never seen
Olivia, did not want to see her, and was not present at her kidney transplant,
bone marrow transplant, or funeral; and that, when Morales attempted to tell
him she was establishing a trust and wanted to serve him with the
paperwork, he reportedly declined to provide his address and stated he
wanted nothing to do with it. The court, however, focused on the facts that
Ovalles had participated in the earlier parentage proceeding by entering into

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mediation and reaching an agreement regarding custody and visitation, and
that he had paid child support. The court concluded these actions amounted
to an acknowledgment of his paternity, finding the facts of the case “very
similar” to those in Estate of Griswold (2001) 25 Cal.4th 904 (Griswold). The
court instructed Westamerica to distribute the Trust’s residue in equal
shares to Morales and Ovalles.
On July 28, 2021, the probate court issued its order approving
Westamerica’s accounting, terminating the Trust, ordering payments from
the Trust for trustee and attorney fees, as well as for a claim filed by the
California Department of Health Care Services,3 and instructing
Westamerica to distribute the remaining balance of the Trust equally to
Morales and Ovalles.
At a hearing held on February 1, 2022, the probate court declined to
reconsider its ruling regarding section 6452 and denied Morales’s motion for
a new trial. Specifically, the court opined that in its previous ruling it had
“discussed [the] Griswold case in detail[] and explained that a consent to pay
child support amounted to the equivalent of an acknowledgement of
parentage.” (Italics added.) Referring to a typed entry of
“Respondent/Father” on the approved form used by parties when seeking to
terminate child support, the court also took note that Ovalles labeled himself
as “father” in the Kern County family law proceedings in April 2021. The
court concluded that it was bound by Supreme Court precedent. This appeal
followed.4

3 The Department of Health Care Services requested approximately
$21,000 in reimbursement from the Trust for services provided to Olivia.
4 Both Westamerica and the court noticed Ovalles at a Bakersfield

address regarding the petition for approval of the final account and request
for instructions regarding final distribution. The court and Westamerica also

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 II. DISCUSSION
A. Standard of Review
The probate court’s interpretation of a statute and its application to
undisputed facts are subject to de novo review. (Sterling v. Taylor (2007)
40 Cal.4th 757, 772; Estate of Wilson (2012) 211 Cal.App.4th 1284, 1290;
Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212.) When the facts are in
conflict, the probate court’s factual findings are reviewed for substantial
evidence. (Estate of Joseph (1998) 17 Cal.4th 203, 217.) Here, the facts are
not in dispute, and we will apply the de novo standard.
Indeed, we note that neither Westamerica nor Ovalles have filed a
responsive brief in this appeal. Accordingly, we “may decide the appeal on
the record, the opening brief, and any oral argument by the appellant.” (Cal.
Rules of Court, rule 8.220(a)(2).) “Although some courts have treated the
failure to file a respondent’s brief as in effect a consent to a reversal, it has
been said that the ‘better rule . . . is to examine the record on the basis of
appellant’s brief and to reverse only if prejudicial error is found.’ ” (In re
Bryce C. (1995) 12 Cal.4th 226, 232–233.) This approach gives full effect to
the presumption that the judgment or order appealed from is correct and
that, in order to prevail, the appellant has the burden to not only overcome
that presumption but also demonstrate reversible error. (See Jameson v.
Desta (2018) 5 Cal.5th 594, 608–609.) Using this approach, we conclude
Morales has demonstrated reversible error.

mailed the court’s June 2021 ruling to Ovalles at the Bakersfield address.
And he was similarly served with Morales’s new trial motion, related
paperwork, and notice of hearing for that motion. We are unaware of the
source of this address or its validity but note that Ovalles has never appeared
in these proceedings.

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B. Applicable Legal Principles
Section 6452, subdivision (a) provides, in relevant part: “A parent does
not inherit from or through a child on the basis of the parent and child
relationship if any of the following apply: [¶] (1) The parent’s parental rights
were terminated and the parent-child relationship was not judicially
reestablished. [¶] (2) The parent did not acknowledge the child. [¶] (3) The
parent left the child during the child’s minority without an effort to provide
for the child’s support or without communication from the parent, for at least
seven consecutive years that continued until the end of the child’s minority,
with the intent on the part of the parent to abandon the child.” If any of
these three circumstances apply, the parent is deemed to have predeceased
the child and the “intestate estate shall pass as otherwise required
under [s]ection 6402.” (§ 6452, subd. (b).)
Here, we are concerned with the second circumstance under section
6542, subdivision (a)—namely—whether Ovalles failed to acknowledge
Olivia. On this point, Griswold, supra, 25 Cal.4th 904 is instructive. In
Griswold, the decedent had died intestate, survived by his wife who
petitioned for administration and authority to administer the estate. (Id. at
p. 908.) The decedent was the illegitimate son of a man who had admitted
paternity in an Ohio court and had paid court-ordered child support. (Ibid.)
The decedent and his biological father never met or communicated. (Id. at
pp. 908–909.) The father eventually married and had two other children.
The decedent’s half-siblings did not learn of the decedent’s existence until
after the decedent and their father had died. (Id. at p. 909.) An heir hunter,
who had obtained an assignment of partial interest in the decedent’s estate
from the half-siblings, objected to a petition for final distribution filed by the
decedent’s wife and filed a petition to determine entitlement to distribution.

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(Id. at p. 908.) After the probate court denied the heir hunter’s petition, the
appellate court reversed, and the matter came before the Supreme Court.
(Id. at p. 909.)
The Supreme Court considered whether the decedent’s father had
“acknowledged” his paternity within the meaning of section 6452. (Griswold,
supra, 25 Cal.4th at p. 910.) It noted preliminarily that the term must refer
to conduct other than “contributing to the child’s support or care” or the
acknowledgement requirement would be surplusage. (Id. at p. 911.) Next,
since the word “acknowledge” is not defined in the Probate Code, the court
resorted to the common dictionary meaning of the word: “ ‘[T]o show by word
or act that one has knowledge of and agrees to (a fact or truth) . . . [or]
concede to be real or true . . . [or] admit.’ ” (Id. at p. 911.) The court found
that, despite the lack of contact between the decedent and his father, by
appearing in a court proceeding and publicly “ ‘confess[ing]’ ” that the
paternity allegation was true, the father had acknowledged the decedent.
(Ibid.) On that basis, the court ruled that the decedent’s half-siblings were
not barred from sharing in the estate by section 6452. (Id. at pp. 919–920.)
In reaching this conclusion, the court considered a number of prior
cases addressing the acknowledgment requirement in section 6452 and
former analogous provisions. For instance, in Lozano v. Scalier (1996)
51 Cal.App.4th 843 (Lozano), the natural father of a 10-month-old decedent
needed to establish that he would be entitled to the child’s property under the
laws of intestate succession, including section 6452, in order to pursue a
wrongful death action with respect to the deceased infant. (Griswold, supra,
25 Cal.4th at p. 913, citing Lozano, at p. 848.) We upheld the trial court's
finding of acknowledgement under section 6452 “in light of evidence in the
record that the plaintiff had signed as ‘Father’ on a medical form five months

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before the child’s birth and had repeatedly told family members and others
that he was the child’s father.” (Griswold, at p. 913, citing Lozano, at p. 848.)
In Estate of McNamara (1919) 181 Cal. 82, the Supreme Court
concluded that “a single unequivocal act could satisfy the acknowledgement
requirement,” under former Civil Code section 230.5 (Griswold, at p. 914,
citing Estate of McNamara at pp. 97–98.) In that case, the act of signing the
birth certificate sufficed, the court opining that “ ‘it would be difficult to
imagine’ ” a “ ‘more public acknowledgement.’ ” (Id. at pp. 914–915, quoting
Estate of McNamara at pp. 97–98; see Blythe v. Ayres (1892) 96 Cal. 532, 577
[concluding the term “acknowledge” in former Civil Code section 230 had no
technical meaning and employing the common meaning “ ‘to own or admit the
knowledge of’’ ”; see also Estate of Gird (1910) 157 Cal. 534, 542–543
[concluding in dictum that “a public avowal, made in the courts” would
constitute a public acknowledgement under former Civil Code section 230].)
Griswold also considered two cases arising under former section 255.6
In Wong v. Young (1947) 80 Cal.App.2d 391, “a man’s admission of paternity

5 Pursuant to former Civil Code section 230: “ ‘The father of an
illegitimate child, by publicly acknowledging it as his own, receiving it as
such, with the consent of his wife, if he is married, into his family, and
otherwise treating it as if it were a legitimate child, thereby adopts it as such;
and such child is thereupon deemed for all purposes legitimate from the time
of its birth.’ ” (Griswold, supra, 25 Cal.4th at p. 914, fn. 4, quoting former
Civ. Code, § 230.)
6 Former section 255 provided, in pertinent part: “ ‘ “Every illegitimate

child, whether born or conceived but unborn, in the event of his subsequent
birth, is an heir of his mother, and also of the person who, in writing, signed
in the presence of a competent witness, acknowledges himself to be the
father, and inherits his or her estate, in whole or in part, as the case may be,
in the same manner as if he had been born in lawful wedlock.” ’ ” (Griswold,
supra, 25 Cal.4th at p. 915, fn. 5.)

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in a verified pleading, made in an action seeking to have the man declared
the father of the child and for child support, was found to have satisfied the
public acknowledgement requirement” for both former section 255 and former
Civil Code section 230. (Griswold, supra, 25 Cal.4th at p. 915.) Finally, in
Estate of Ginochio (1974) 43 Cal.App.3d 412 (Ginochio), “a judicial
determination of paternity following a vigorously contested hearing did not
establish an acknowledgement sufficient to allow an illegitimate child to
inherit under section 255 of the former Probate Code. [Citation.] Although
the court noted that the decedent ultimately paid the child support ordered
by the court, it emphasized the circumstance that the decedent was declared
the child’s father against his will and at no time did he admit he was the
father, or sign any writing acknowledging publicly or privately such fact, or
otherwise have contact with the child.” (Griswold, at p. 919.) In reaching
this conclusion, Ginochio opined that the “establishment of paternity [was]
neither a statutory requisite to obtain inheritance rights under section 255,
nor [could] it serve as a substitute for the statutory mandate which requires
in clear and unequivocal terms that the father acknowledge ‘himself to be the
father.’ ” (Ginochio, at p. 416.)
On the other hand, Lozano concluded, and Griswold confirmed, that an
acknowledgement under section 6452 need not be contained in a witnessed
writing or made after the child was born so that the child is identified.
(Griswold, supra, 25 Cal.4th at pp. 913–914, citing Lozano, at pp. 848–849.)
And, as the appellate court in Estate of Burden (2007) 146 Cal.App.4th 1021,
1029 (Burden) later observed, Griswold “held that section 6452 should not be
read to require that a father have personal contact with his out-of-wedlock
child, make purchases for the child, receive the child into his home and other
family, or treat the child as he does his other children.” Instead, Griswold

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“held the acknowledgement requirement was met because the stipulated
facts showed that the decedent’s father admitted paternity in a court
proceeding. The court found significant the absence of evidence indicating
the father did not confess knowingly and voluntarily, or that he later denied
paternity or knowledge of the child to those who were aware of the
circumstances.” (Burden, at p. 1029.)
A final case relevant for our purposes is Estate of Shellenbarger (2008)
169 Cal.App.4th 894 (Shellenbarger). There, a married father abandoned his
wife in New Mexico while she was pregnant with the decedent. (Id. at
p. 897.) Several years later, he obtained a judgment of marital dissolution in
Michigan and was ordered to pay child support. (Ibid.) It appears he may
have paid some portion of the child support ordered. (Id. at p. 898.) After the
child died, the mother argued that the father should not inherit under the
laws of intestate succession because he had abandoned the decedent and had
never visited or spoken to him. (Id. at p. 897.) The court noted that the
father’s bad behavior might have been relevant under section 6542 had the
parents not been married. (Id. at pp. 898–899.) However, since the parties
were married when the decedent was conceived and the father acknowledged
paternity in the dissolution proceeding, he was entitled to inherit through his
son. (Ibid.)
Section 6452 was repealed and reenacted in 2013—12 years after
Griswold was decided—to address the inequities exposed in Shellenbarger.
(Stats. 2013, ch. 39, § 2; Assem. Com. on Judiciary, Rep. on Assem. Bill
No. 490 (2013-2014 Reg. Sess.) Apr. 2, 2013 [proposed amendment].)7 The

7
On our own motion, we take judicial notice of the legislative history of
Assembly Bill No. 490 (2013–2014 Reg. Sess.). (Evid. Code, § 452, subd. (c);
Kern v. County of Imperial (1990) 226 Cal.App.3d 391, 400, fn. 8 [appellate

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reenacted statute no longer requires contribution to the child’s support. It
also eliminated any distinction between married and unmarried parents.
(Assem. Com. on Judiciary, Rep. on Assem. Bill No. 490 (2013-2014 Reg.
Sess.) as amended May 23, 2013 [“This bill . . . seeks to eliminate the
distinction between married and unmarried parents and permit all parents to
inherit from their children who die intestate,” unless certain exceptions are
present].)
Thus, as described above, any parent may inherit from or through their
child unless parental rights are terminated; the parent failed to acknowledge
the child; or the parent left the child during the child’s minority without an
effort to provide support or without communication for seven consecutive
years, presumptive evidence of the parent’s intent to abandon the child.
(§ 6452.) The Legislature also added subdivision (b) to section 6452,
providing that if a parent is disinherited pursuant to its terms, the parent is
deemed to have predeceased the child and the “intestate estate shall pass as
otherwise required under [s]ection 6402.” (§ 6452, subd. (b).)
C. Analysis
In its June 2021 ruling, the probate court in the instant case expressly
relied on Griswold in finding that Ovalles’s “acknowledgment” occurred when
he “participated in the Kern County proceedings, attending mediation and
reaching an agreement regarding legal and physical custody, and paid his
child support.” In subsequently denying Morales’s new trial motion, the
court also noted that Ovalles had designated himself as “father” in his
request to terminate child support after Olivia’s death. And it commented

court may take judicial notice of legislative history materials on own
motion].)

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that “a consent to pay child support amounted to the equivalent of an
acknowledgement of parentage.”
In challenging the probate court’s reasoning, Morales contends that
“the acts listed by the trial court in support of its ruling arise from the
paternity petition filed by the Appellant and are insufficient to establish an
acknowledgment.” She maintains that the probate court erred in its
application of Griswold, arguing that “[i]n contrast to [the father] in the
Griswold matter, Mr. Ovalles never admitted he was Olivia’s father in the
pending paternity case, and there was no judgment of paternity during her
lifetime.” We agree with Morales, finding the instant case more like Ginochio
than Griswold.
First, Griswold held that something more than contributing to the
minor’s support was required to find an acknowledgement of paternity, and
we see nothing in Assembly Bill No. 490 or its legislative history that would
change this conclusion. To the contrary, the revised statute specifically
provides that abandonment can occur through lack of communication even
when support is provided. (§ 6452, subd. (a)(3).) And decades before these
legislative changes, Ginochio held that an order to pay child support may be
based on something less than a voluntary acknowledgment of paternity.
“Where, as here, legislation has been judicially construed and a subsequent
statute on the same or an analogous subject uses identical or substantially
similar language, we may presume that the Legislature intended the same
construction, unless a contrary intent clearly appears.” (Griswold, supra,
25 Cal.4th at pp. 915–916, citing cases.)
Ginochio also established that mere participation in paternity
proceedings is insufficient evidence of an acknowledgement of paternity.
This leaves us with two bases upon which we could affirm the probate court’s

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order: Ovalles’s participation in mediation during the family court process
and his designation of himself as “Respondent/Father” in his April 2021
petition to discontinue child support. Even if this ambiguous reference
provides some suggestion of an acknowledgement of fatherhood, it cannot be
afforded much weight since it was made after Olivia died, and the relevant
date for determining a decedent’s heirs under intestate succession is the date
of the decedent’s death. (See § 7000.)
With respect to the mediation, Ovalles—having stated he was
“uncertain” regarding Olivia’s paternity and without any declaration of
parentage—agreed that Morales should have sole legal and physical custody
and declined visitation. While we agree that this is not the vigorous
challenge to paternity that was present in Ginochio, it is also not the public
“confession” of paternity which was conclusive in Griswold. Indeed, Griswold
speaks in terms of a “single unequivocal act” as satisfying the
acknowledgement requirement set forth in section 6452. (Griswold, supra,
25 Cal.4th at p. 914.) And Ginochio stated that former section 255 required a
father to acknowledge himself as such in “clear and unequivocal terms.”
(Ginochio, supra, 43 Cal.App.3d at p. 416.) A mediation is, by its nature, an
agreed-upon compromise. We can conceive of different reasons why Ovalles
may have mediated this paternity dispute as he did, including, perhaps, a
desire to avoid a formal declaration of paternity. Such mediation was
certainly not an unequivocal confession that he was Olivia’s father. Under
these circumstances, where Ovalles has failed to acknowledge paternity for
purposes of section 6452, he cannot inherit based upon the parent-child
relationship.8

8Ovallessigned the mediation agreement as respondent. We do not
deem the passing references to him as “father” in family court-generated

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 III. DISPOSITION
The order is reversed and remanded for further proceedings consistent
with the conclusions set forth herein. Morales is entitled to her costs on
appeal.

documents such as the mediation agreement or the computer-generated
DissoMaster support calculation to be persuasive evidence of his intent to
acknowledge paternity.

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 _________________________
Humes, P.J.

WE CONCUR:

_________________________
Margulies, J.

_________________________
Banke, J.

Westamerica Bank v. Morales A165492

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