Estate of Toles CA2/3

Filed 8/24/21 Estate of Toles CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

Estate of ALONZO TOLES, B296924
Deceased.
Los Angeles County
Super. Ct. No. BP165396
CYNTHIA YVONNE EDWARDS,

Petitioner and Respondent,

v.

GREEN’S DEVELOPMENT, LLC,

Objector and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Paul T. Suzuki, Judge. Affirmed.
Law Offices of Frank A. Weiser and Frank A. Weiser for
Objector and Appellant.
Thomas Vogele & Associates, Timothy M. Kowal; Burris
Law and Jason Burris for Petitioner and Respondent.
 INTRODUCTION

Respondent Cynthia Yvonne Edwards was the surrogate
daughter of Alonzo and Estellar Toles and cared for them for the
last 20 years of their lives. When Alonzo Toles died in the early
1990s, he left a will bequeathing the Toleses’ Compton house to
Edwards. Although Edwards never probated the will or
transferred the deed, she has lived in the house, maintained it,
and paid the property taxes ever since. In 2015, a group of Alonzo
Toles’s nieces and nephews, led by Eugene Davis, filed a petition
to determine succession to the house and have themselves
declared Alonzo’s heirs. They didn’t notify Edwards. The probate
court granted the petition, and the relatives sold the property to
appellant Green’s Development, LLC, which is owned by Alton
Green, Edwards’s brother-in-law. Edwards finally learned about
the probate and sale when a notice of eviction was posted on her
door and an unlawful detainer action was brought against her. In
response, Edwards moved to set aside the court’s succession
order, arguing that Eugene Davis had unlawfully failed to notify
her of the probate proceedings. The trial court agreed, and, after
a bench trial, granted the set-aside petition.
On appeal, Green’s Development argues that the court
erred by granting the set-aside petition based on extrinsic fraud.1
We conclude it has forfeited this claim by failing to discuss the
evidence in support of the court’s order. We therefore affirm.

1 None of the parties to the original petition to determine succession,
including Eugene Davis, are parties to this appeal. For clarity, at times
we refer to the family members by their first names.

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 BACKGROUND

1. Factual Background
Alonzo Toles and his wife Estellar owned and lived in a
house in Compton. Although they were unable to have children,
they found a surrogate daughter in Edwards, who cared for them
for the last 20 years of their lives. Estellar died in June 1991, and
Alonzo died in January 1993. Alonzo left a will naming Edwards
as his sole heir, and she moved into the Compton house in
February 1993. Edwards has lived there ever since, but she didn’t
understand the importance of transferring title to the property or
probating the will. She simply paid the property taxes and the
utility bills whenever they arrived.
Although Alonzo Toles didn’t have children, his sister
Gussie Lou Davis had eight of them, most of whom lived in
Alabama, and many of whom had children of their own.2 One of
Gussie Lou’s sons was Arthur Davis, who had raised Edwards
from birth but had never formally adopted her.3
Edwards stayed close to Arthur’s other kids and to many of
the Alabama relatives throughout her life. The extended family
knew about Edwards’s relationship with the Toleses and that she
had moved into the house after their death—and at least some of
them knew about the will. No one ever challenged her presence or
tried to claim the property.

2 None of the Alabama relatives attended Alonzo’s funeral.
3Alonzo brought Arthur to California in 1966, and Edwards joined
them two years later.

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2. Petition to Determine Succession of Real Property
On August 4, 2015, Eugene filed a petition to determine
succession to real property.4 The petition indicated that Alonzo
had died intestate; the sole asset of the estate was the Compton
house; and Alonzo was survived by Gussie Lou Davis’s children
and their heirs.5 Eugene served the subsequent notice of hearing
on all of the people listed in the petition—the surviving Davis
cousins and the issue of the predeceased cousins. Each of the
eight people who were served with the notice of hearing
subsequently filed a notice of joinder to the petition. Edwards
was not listed as a possible heir and was not given notice.
On February 5, 2016, the court granted the petition and
issued an order determining succession to real property. The
order stated that Alonzo had died intestate, and it transferred
the Compton property to the nine cousins and heirs listed in and
served with the case documents.
On November 1, 2016, the property was sold to Green’s
Development for $210,000. Alton Green is the owner of Green’s
Development and Edwards’s brother-in-law; he is married to Vivi
Green, Edwards’s half-sister. Alton intended to use the property
as a short-term investment; he planned to renovate and re-sell it.
A month later, a notice to quit was posted on the door of the
house. Notwithstanding the sale of the property to Green’s
Development, Eugene filed an unlawful detainer action against
Edwards on January 10, 2017. The complaint alleged that

4The parties stipulated at trial that the petition was filed on
September 25, 2015, but that was the date initially set for a hearing on
the petition, not the filing date.
5 Gussie Lou had died sometime in 2014 or 2015.

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Eugene owned the property, and that on January 1, 2013,
Edwards had orally agreed to a tenancy at will.
3. Petition to Set Aside
On January 19, 2017, Edwards filed a verified petition to
set aside the order determining succession to real property.
Edwards argued that Alonzo had not died intestate, that she was
his sole heir, and that the succession order had been procured
through extrinsic fraud because she had not been given notice of
the action. Edwards represented that the Toleses had “treated
and held [her] out as their own.” She alleged that Eugene, in
particular, knew about the relationship, knew a will might exist,
and knew she might have a claim on the property. She attached a
copy of the will.
After a one-day bench trial, the court granted the set-aside
petition.6 The court reasoned that “due to the long history of
Cynthia Edwards being in the house and the fact that family
members did come around, had knowledge of her presence, and
the possibility of the closeness between the decedents—both the
mother and the father in this case, Mr. and Mrs. Toles—that the
court feels that Eugene Davis should have given notice to Ms.
Cynthia Edwards that a probate action was happening.”
The court held that Edwards’s identity was reasonably
ascertainable to Eugene; a reasonable person would conclude she
might be an heir and/or devisee of Alonzo; Eugene committed
extrinsic fraud by denying notice to Edwards, knowing that she
would likely object to the petition because she purported to be the

6Although Eugene had been listed as an expected witness, he did not
ultimately testify.

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beneficiary of Alonzo’s will; and Eugene fraudulently submitted
the petition under the rules of intestate succession by not
providing notice to Edwards, a person reasonably likely to be a
potential heir. Accordingly, the court vacated the February 5,
2016 order determining succession to real property and ordered
the property restored to the estate.
Green’s Development filed a notice of appeal.

DISCUSSION

Green’s Development argues that the court erred in
granting the set-aside petition because Edwards was not a
genuinely-known heir, and, therefore, was not entitled to notice.
1. Defects in the notice of appeal did not prejudice
Edwards.
Edwards asks us to dismiss this matter because the notice
of appeal misidentifies the order being appealed. Although
Green’s Development purports to appeal from “the trial court’s
Order after Court Trial of October 16, 2018,” the order was
actually filed on November 29, 2018. We agree that the notice of
appeal is deficient but conclude the deficiency did not prejudice
Edwards.
In a civil case, the “notice of appeal must be liberally
construed. The notice is sufficient if it identifies the particular
judgment or order being appealed.” (Cal. Rules of Court,
rule 8.100(a)(2).) Accordingly, the “rule has long been established
that an incorrectly framed notice of appeal will be construed to
refer to the correct appealable order assuming that the intention
of the appellant is clear. [Citations.]” (Baldwin Park
Redevelopment Agency v. Irving (1984) 156 Cal.App.3d 428, 433.)

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 When reviewing the record in this case, we had no difficulty
ascertaining Green’s Development’s intent to appeal from the
November 29, 2018 order entered after the August 27, 2018 trial;
neither, we are sure, did Edwards.7 The notice of appeal plainly
referred to the court’s “Order after Court Trial”—and there was
only one such order here. The reason for the error is also clear.
The order after trial had been drafted by counsel for Edwards
and served on Green’s Development on October 16, 2018. When
the court ultimately signed and filed the order on November 29,
2018, the October proof of service was still attached.
Furthermore, to the extent there was any confusion, the
subsequently-filed designation of record clarified that the appeal
was from “the trial court’s Order after Court Trial filed
November 29, 2018 … .” In short, it’s clear that Edwards has
suffered no prejudice and would not have proceeded differently
had Green’s Development properly identified the order after trial
as having been filed on November 29, 2018, rather than
October 16, 2018.
We also conclude the notice of appeal was timely. Because
the record does not contain a notice of entry of the order, Green’s
Development was required to file a notice of appeal within 180
days from the November 29, 2018 order. (Cal. Rules of Court,
rule 8.104(a)(1)(C).) Although the notice of appeal contains
several purported service and filing dates, it appears to have
been filed on the last of these dates, April 10, 2019, the date

7 Indeed, in her respondent’s brief, Edwards herself incorrectly
identifies the trial date as October 16, 2018. We had no trouble
figuring out what she meant.

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stamped in the electronic-filing header. Because the notice was
filed within the 180-day period, it was timely.
2. Legal Principles and Standard of Review
Courts have the inherent power to set aside judgments
procured by the extrinsic fraud of denying an adversary the
opportunity to present her claim or defense to the court. (Estate
of Carter (2003) 111 Cal.App.4th 1139, 1154 (Carter).) “ ‘Extrinsic
fraud is a broad concept that “tend[s] to encompass almost any
set of extrinsic circumstances which deprive a party of a fair
adversary hearing.” ’ [Citations.] The clearest examples of
extrinsic fraud are cases in which the aggrieved party is kept in
ignorance of the proceeding or is in some other way induced not
to appear. [Citation.] In both situations the party is ‘fraudulently
prevented from presenting his claim or defense.’ ” (Estate of
Sanders (1985) 40 Cal.3d 607, 614–615; see id. at p. 619
[reversing denial of motion to set aside probate orders;
allegations, including that the executor “concealed ... that he had
arranged for the decedent to change her will to leave most of the
estate to him” and “assured [the beneficiaries] ... he would
represent their interests,” would “if true, clearly show extrinsic
fraud”]; Carter, at pp. 1143–1144, 1154–1155 [affirming order
vacating final distribution; brother, who filed probate petition,
engaged in extrinsic fraud by determining decedent’s daughters
born out of wedlock were not heirs and not providing notice].)
“The courts are particularly likely to grant relief ... where there
has been a violation of a special or fiduciary relationship.”
(Sanders, at p. 615.) “[T]he ... administrator occupies a fiduciary
relationship in respect to all parties having an interest in the
estate ... .” (Nathanson v. Superior Court of Los Angeles (1974)
12 Cal.3d 355, 364.)

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 Probate Code8 section 8110 requires that notice of the
hearing for administration of a decedent’s estate be given to all
heirs, “so far as known to or reasonably ascertainable by the
petitioner” and all devisees “in any will being offered for probate,
regardless of whether the devise or appointment was purportedly
revoked in a subsequent instrument.” Section 11601 requires
notice of the hearing on the petition for final distribution be given
to each heir and devisee “whose interest in the estate would be
affected by the petition” (as well as the Attorney General and/or
Controller, in certain cases).
The courts have concluded that notice must be served upon
potential claimants whose identity is known or reasonably
ascertainable. (See Tulsa Professional Collection Services, Inc. v.
Pope (1988) 485 U.S. 478, 490–491 (Tulsa Collection).)
Reasonably ascertainable has “a broad meaning, sufficient to
include individuals (1) whose identities are known to the
petitioner and (2) who reasonably might be heirs.” (Carter, supra,
111 Cal.App.4th at p. 1142.) If a petitioner fails to give notice to a
genuinely known or reasonably ascertainable heir, he commits
extrinsic fraud. (Id. at pp. 1149, 1154.)9
When reviewing set-aside orders, “the trial court’s findings
of fact pertaining to the existence of extrinsic fraud or extrinsic
mistake are reviewed for substantial evidence. But our overall

8 All undesignated statutory references are to the Probate Code.
9The same rule applies to reasonably ascertainable creditors under
section 9050. (Carter, supra, 111 Cal.App.4th at pp. 1145–1146.)
Edwards argued below that even if she was not entitled to notice as a
possible heir, she was entitled to notice based on her interest in the
property because she had acquired the house through adverse
possession. She does not raise that issue on appeal.

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review of the trial court’s application of those findings is for an
abuse of discretion.” (Kramer v. Traditional Escrow, Inc. (2020)
56 Cal.App.5th 13, 28, construing Carter, supra, 111 Cal.App.4th
at p. 1154; Haraguchi v. Superior Court (2008) 43 Cal.4th 706,
711–712 [“The abuse of discretion standard is not a unified
standard; the deference it calls for varies according to the aspect
of a trial court’s ruling under review. The trial court’s findings of
fact are reviewed for substantial evidence, its conclusions of law
are reviewed de novo, and its application of the law to the facts is
reversible only if arbitrary and capricious.”].)
3. Green’s Development has forfeited its appellate claims.
Green’s Development contends that Eugene was not
required to notify Edwards that he had filed a petition to
determine succession to the Compton property because she was
not a genuinely known heir. This amounts to an argument that
the court abused its discretion because its ruling is not supported
by substantial evidence. Edwards argues that Green’s
Development has forfeited this claim. We agree.
“ ‘An appellant challenging the sufficiency of the evidence
to support the judgment must cite the evidence in the record
supporting the judgment and explain why such evidence is
insufficient as a matter of law. [Citations.] An appellant who fails
to cite and discuss the evidence supporting the judgment cannot
demonstrate that such evidence is insufficient. The fact that
there was substantial evidence in the record to support a
contrary finding does not compel the conclusion that there was no
substantial evidence to support the judgment.’ [Citation.]”
(Verrazono v. Gehl Company (2020) 50 Cal.App.5th 636, 652.)
Green’s Development’s opening brief in this appeal does not
contain a statement of facts; it cites to only two pages of the 101-

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page reporter’s transcript; and it ignores all the testimony that
supports the court’s order. By failing to acknowledge the contrary
evidence in this case, Green’s Development has forfeited its claim
that the court erred.
Nevertheless, Green’s Development insists that this rule of
appellate forfeiture does not apply because this case “presents an
important constitutional due process issue” and “[c]onstitutional
issues are generally reviewed independently.” In support of this
claim, it cites to a handful of cases involving the Confrontation
Clause of the Sixth Amendment, a case about whether a pretrial
lineup was unduly suggestive, and a couple of cases about the
First Amendment. Certainly, we independently review questions
impacting freedom of speech or criminal defendants’ fundamental
rights—but it is unclear how those bedrock principles apply here.
To the extent Green’s Development is arguing that de novo
review applies here because the probate court was interpreting a
notice statute, and the material facts are undisputed, it is
mistaken. (Cf., e.g., Harustak v. Wilkins (2000) 84 Cal.App.4th
208, 212–213 [applying de novo review in trust dispute, where,
among other things, trial court did not assess credibility of
witnesses and appeal turned on the meaning of a statutory
phrase]; Estate of MacLeod (1988) 206 Cal.App.3d 1235, 1241
[using independent review in will contest, where extrinsic
evidence was not in conflict].) Although section 8110 was revised
to comport with the constitutional requirements laid out in Tulsa
Collection, supra, 485 U.S. 478, the court here was applying
extrinsic fraud principles, not interpreting the Probate Code, and
the facts were not undisputed. Edwards and Green’s
Development provided conflicting accounts regarding who knew
what and when, and would have us draw different inferences

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about whether Edwards was a reasonably ascertainable heir.
(See Bower v. Inter–Con Security Systems, Inc. (2014) 232
Cal.App.4th 1035, 1043 [“Independent review is appropriate only
when the facts permit just one reasonable inference.”].)
Finally, Green’s Development asserts that “even if the trial
court were found to be correct that Edwards was entitled to
notice, the trial court erred in not determining that GLLC, as a
purchaser of the subject property[,] was entitled to a return of its
purchase monies.” Green’s Development has forfeited this
argument by failing to develop it. (See In re Marriage of Falcone
& Fyke (2008) 164 Cal.App.4th 814, 830 [absence of cogent legal
argument or citation to authority forfeits the contention; “[w]e
are not bound to develop appellants’ arguments for them”];
Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852
[failure to develop claim with reasoned legal argument and
supporting authority forfeits the issue].) Regardless, the
argument is premature. The court below decided neither the
will’s validity nor the ultimate question of the property’s
ownership. And it was not asked to decide whether Green’s
Development should get its money back. As such, the question is
not encompassed by the order from which Green’s Development
appeals.

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 DISPOSITION

The order is affirmed. Cynthia Yvonne Edwards shall
recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
WE CONCUR:

EDMON, P. J.

EGERTON, J.

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