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Filed 8/31/15 Estate of Hessler CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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

THIRD APPELLATE DISTRICT

(Sutter)

----

Estate of JOHN DENNIS HESSLER, Deceased.

SHAWNA MASSEY, as Executor, etc.,

Petitioner and Appellant,

v.

TIMOTHY WADE HESSLER et al.,

Objectors and Respondents.

C076166

(Super. Ct. No. CVPR11125)

This appeal arises from a probate court order confirming decedent John Dennis 

Hessler transferred by quitclaim deed 22.5 acres of real property into his revocable trust 

shortly before he died.1 If the trial court correctly found the transfer to be valid, the real 

property was not part of John’s estate when he died and not subject to the directions in 

his will. John’s will named his daughter, appellant Shawna Massey, as executor of his 

 

1 Because several parties share the same surname, we refer to individuals in this 

case by their first names.
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estate. In her capacity as executor, Shawna petitioned the probate court to determine title 

of the real property. Shawna also successfully sought a hardship discharge for the 

bankruptcy proceeding initiated for John’s benefit while he was still alive. After the 

bankruptcy was discharged, John’s other child, respondent Timothy Wade Hessler, 

recorded the quitclaim deed to the real property. 

On appeal, Shawna contends (1) the trial court erred by failing to consider her 

argument that Timothy’s recording of the deed constituted an untimely will contest after 

the limitations period on a will contest had expired, (2) Timothy and his sons, Shawn T. 

Hessler and Timothy J. Hessler (Timothy J.), lacked standing to participate in this probate 

action, and (3) John lacked capacity to execute the quitclaim deed given his non-verbal 

physical condition, the testimony of his attending physician, and the fact he executed two 

conflicting testamentary documents at the same time.

We conclude Shawna has not preserved for appeal the issue of the trial court’s 

failure to rule on her argument that the recording of the deed constituted an untimely will 

contest. The record establishes Timothy, Shawn, and Timothy J. have standing in this 

probate action because the outcome determines whether they are beneficiaries of the land 

under the trust or whether the land is part of John’s estate and subject to being sold to 

cover probate costs. In this judgment roll appeal, we conclude the evidence of John’s 

testamentary capacity is not subject to attack. And the issue of John signing possibly 

conflicting testamentary documents has not been preserved for appellate review.

Timothy has filed a motion to sanction Shawna for a frivolous appeal. We deny 

the motion because this appeal is not frivolous and the record does not indicate it was 

taken solely for purposes of delay.

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2 Although Shawn and Timothy J. join in the respondent’s brief filed by their father, 

Timothy, they have not joined in the motion for sanctions also filed by their father. 
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BACKGROUND

Shawna has elected to proceed solely on a clerk’s transcript. (Cal. Rules of Court, 

rule 8.121.) Thus, this is a judgment roll appeal. (Allen v. Toten (1985) 172 Cal.App.3d 

1079, 1082–1083.) In the absence of a reporter’s transcript or settled statement, we draw 

the facts from the trial court’s findings after hearing. 

John filed for Chapter 13 bankruptcy in 2010. On July 27, 2011, he was 

hospitalized after suffering a major stroke. In the hospital, John signed a will, a quitclaim 

deed, and a revocable trust on August 30, 2011. John died in the hospital on 

September 2, 2011, before his bankruptcy was discharged. 

The parties stipulated John had testamentary capacity to execute the will. 

However, the parties contested whether John lacked capacity to form the intent to transfer 

the 22.5 acres of real property to his sister as trustee for John’s revocable trust. On this 

issue, the court “heard testimony from several witnesses regarding the circumstances” of

John’s execution of his will, quitclaim deed, and revocable trust. In pertinent part, the 

trial court found:

“It is uncontroverted [that John] suffered a debilitating stroke [on] July 27, 2011 

and that he remained hospitalized until his death on September 2, 2011. It is 

uncontroverted that [John’s] speech was labored and his level of lucidity varied even 

within any given day.

“A Kaiser Roseville hospitalist and Internal Medicine physician, Robert Bruce 

Jobe, M.D., testified he examined [John] on the morning of August 20, 2011 for the first 

and only time for about 20 minutes. Dr. Jobe testified based on his training and 

expertise, patients who have suffered strokes of the severity of [John’s] stroke would 

probably lack the cognitive ability to understand documents of such complex nature as 

the Will, Trust and Deed if they heard them read for the first time. However, he 

conceded that if the content of documents such as the Will, Trust and Deed were 
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consistent with a plan made prior to suffering a stroke, a patient in a state comparable to 

the state of [John] was more likely to be able to understand the meaning and effect of 

such documents, if s/he was having a good day.

“Dr. Jobe was questioned about nursing notes in [John’s] file entered later on 

August 30, 2011, which seemed somewhat contradictory to his own recorded 

observations. He did acknowledge that stroke patients often have good and bad periods, 

as well as good days and bad days.

“Several family members testified [John] was responding well during the day and 

evening of August 30, 2011. They all, including [Shawna] described [John] to be in a 

particularly happy mood and quite responsive. [Shawna] testified she had spent much of 

the day at the hospital and that her father was ‘fine’, ‘in good spirits’, ‘responsive’ and 

‘having a great day’ on August 30, 2011. Family members testified that he was able to 

whisper a few words that day.

“Several witnesses testified that for many years, it was known to them [that John] 

had always intended Shawna would get the money and [Timothy] would get the land.

“[John’s] sister, Rosemary Kouretas, testified [John] nodded as [Timothy] Hessler 

read the documents. When [John] was asked if he understood the documents, Rosemary 

Kouretas testified, as did several other witnesses present, that [John] actually reached for 

the pen to sign each of the documents, though he needed [Timothy] to help steady the 

pen.

“[Timothy] testified, inter alia, the reason the land was quit claim deeded to 

Rosemary Kouretas as the Trustee of the John Dennis Hessler Revocable Trust, and not 

to him as the plan had always been, was because he was having tax problems and his 

father wanted the land to remain in the family for the family to use rather than be seized 

by the government to satisfy [Timothy’s] tax problems.
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“Based on the totality of the witnesses’ statements and the credibility of the 

witnesses, as well as the fact that [Shawna] has stipulated that [John] was competent to 

execute the Will on August 30, 2011, the Court is satisfied that the Deed was signed and 

is consistent with the wishes of [John] and that [John] had the competency and capacity 

to form the intent, and had the intent, to deliver the Deed.”

After the trial court received a certified copy of John’s bankruptcy plan, the court 

rejected Shawna’s claim the quitclaim deed conflicted with the bankruptcy proceedings. 

Specifically, the findings after hearing state: “Under Section VI. Miscellaneous 

Provisions of [John’s] Bankruptcy Plan confirmed on December 29, 2010, the Court 

reads and finds ‘6.01 Vesting of Property’ to mean the property of the bankruptcy estate 

revested to [John] on December 29, 2010 and therefore [John] was not in violation of the 

bankruptcy when he Quit Claimed his interest in the [real property] on August 30, 2010. 

Barring any contrary provisions in the plan, [John] had full authority to transfer the 

property as of that date, pursuant to 11 U.S.C. 1327(b).” (Underlining omitted.) Thus, 

the trial court concluded “the Quit Claim Deed signed by [John] on August 30, 2011, is a 

valid transfer of the [real property] to the [revocable trust].” 

The trial court also rejected Shawna’s argument Timothy, Shawn, and Timothy J. 

lacked standing. The court noted Timothy, Shawn, and Timothy J. were indisputably 

John’s son and grandchildren. Thus, under Probate Code section 48, they are included 

among John’s legal heirs. 

DISCUSSION

I

Whether Recording of the Deed Constituted an Untimely Will Contest

Shawna contends the “trial court’s failure to rule on the issue properly placed 

before it, i.e., that the recording of the deed was a time-barred de facto attack on the 

validity of the Will, . . . was an error that should be reviewed de novo.” Although 
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Shawna presented the issue to the trial court for consideration, she did not respond to the 

trial court’s written findings to point out the omitted issue. Consequently, the issue has 

not been preserved for appeal. 

As the California Supreme Court has explained, “A judgment or order of a lower 

court is presumed to be correct on appeal, and all intendments and presumptions are 

indulged in favor of its correctness. (Aceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d 

502, 507; Munoz v. Olin (1979) 24 Cal.3d 629, 635–636; Nestle v. City of Santa Monica

(1972) 6 Cal.3d 920, 925.) [Code of Civil Procedure s]ections 632 and 634 . . . set forth 

the means by which to avoid application of these inferences in favor of the judgment. 

When the court announces its tentative decision, a party may, under section 632, request 

the court to issue a statement of decision explaining the basis of its determination, and 

shall specify the issues on which he [or she] is requesting the statement; following such a 

request, the party may make proposals relating to the contents of the statement. 

Thereafter, under section 634, the party must state any objection he [or she] may have to 

the statement in order to avoid an implied finding on appeal in favor of the prevailing 

party. The section declares that if omissions or ambiguities in the statement are timely 

brought to the trial court’s attention, the appellate court will not imply findings in favor 

of the prevailing party. The clear implication of this provision, of course, is that if a party 

does not bring such deficiencies to the trial court’s attention, he [or she] waives his [or 

her] right to claim on appeal that the statement was deficient in these regards, and hence 

the appellate court will imply findings to support the judgment. Furthermore, section 634 

clearly refers to a party’s need to point out deficiencies in the trial court’s statement of 

decision as a condition of avoiding such implied findings, rather than merely to request 

such a statement initially as provided in section 632.2 

“The statutes thus describe a two-step process: first, a party must request a 

statement of decision as to specific issues to obtain an explanation of the trial court’s 
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tentative decision (§ 632); second, if the court issues such a statement, a party claiming 

deficiencies therein must bring such defects to the trial court’s attention to avoid implied 

findings on appeal favorable to the judgment (§ 634).” (In re Marriage of Arceneaux

(1990) 51 Cal.3d 1130, 1133-1134 (Arceneaux), fns. omitted.)

In the written decision, the trial court listed the three issues to be decided: (1) 

standing; (2) delivery of the deed; and (3) the effect of the bankruptcy on the validity of 

the quitclaim deed transfer.3 Shawna did not inform the trial court about any issues she 

believed were necessary for resolution of the case but omitted from the written decision. 

Consistent with Arceneaux, we conclusively presume the trial court properly considered 

and decided all of the issues implicit within the findings after hearing. (51 Cal.3d at pp. 

1133-1134.) For this reason, we do not consider Shawna’s contentions that the recording 

of the deed was after the expiration of the limitation period to contest the will and the 

expiration of the time to contest the will had the effect of ratifying the provisions in the 

will. 

II

Standing to Participate in the Probate Action

Shawna contends the trial court erred in finding Timothy, Shawn, and Timothy J. 

had standing to participate in this probate case. She argues Timothy, Shawn, and 

Timothy J. “were not the proper parties to participate in this proceeding that sought, 

effectively, to transfer an asset to the alleged trust because they were not trustees.” 

 

3 The trial court actually issued two decisions. The first decision filed on 

December 24, 2013, and entitled, “Ruling After Hearing” addressed the first two issues: 

(1) standing and (2) delivery of the deed. The second decision filed on February 5, 2014, 

and entitled, “Findings and Order” addressed the third issue: the effect of the bankruptcy 

on the validity of the quitclaim deed transfer. For ease of reference, we will refer to these 

two documents as the trial court’s written decision.
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Shawna asserts only Rosemary, the trustee of John’s revocable trust, had standing to 

claim the real property was a trust asset and not part of John’s estate when he died. We

conclude the trial court did not err.

Under the Probate Code, “[a] party has standing to contest a will if that contestant 

is an ‘interested person.’ (§ 1043, subd. (a) [‘An interested person may appear and make 

a response or objection in writing at or before the hearing’]; Estate of Lind (1989) 209 

Cal.App.3d 1424, 1430.)” (Estate of Sobol (2014) 225 Cal.App.4th 771, 781 (Sobol).) 

Probate Code section 48, subdivision (a)(1), defines an “interested person” who may 

participate in a probate action to include “[a]n heir, devisee, child, spouse, creditor, 

beneficiary, and any other person having a property right in or claim against a trust estate 

or the estate of a decedent which may be affected by the proceeding.” Subdivision (b) of 

the same section provides that “[t]he meaning of ‘interested person’ as it relates to 

particular persons may vary from time to time and shall be determined according to the 

particular purposes of, and matter involved in, any proceeding.”

Under subdivision (b) of Probate Code section 48, a “probate court has flexibility 

in determining whether to permit a party to participate as an interested party. (Estate of 

Prindle (2009) 173 Cal.App.4th 119, 126; Estate of Davis (1990) 219 Cal.App.3d 663, 

668.) The court in Davis explains: ‘Subdivision (a) of section 48 does not purport to 

provide an exclusive list of recognizable interests. Rather, it permits the court to 

designate as an interested person anyone having an interest in an estate which may be 

affected by a probate proceeding. Subdivision (b) allows the court to determine the 

sufficiency of that party’s interest for the purposes of each proceeding conducted. Thus, 

a party may qualify as an interested person entitled to participate for purposes of one 

proceeding but not for another.’ (Estate of Davis, supra, 219 Cal.App.3d at p. 668; 

accord, Estate of Prindle, supra, 173 Cal.App.4th at p. 126.) Courts have given standing 
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to parties not specifically listed in section 48, subdivision (a).” (Sobol, supra, 225 

Cal.App.4th at p. 782.)

For the beneficiary of a trust to appear in a probate proceeding as an interested 

person, the “ ‘beneficiary’ must have ‘ “a property right in or claim against a trust estate 

or the estate of a decedent which may be affected by the proceeding.” ’ ” (Sobol, supra, 

225 Cal.App.4th at pp. 782-783.) Here, the trust document signed by John shows 

Timothy, Shawn, and Timothy J. are all beneficiaries. Shawn and Timothy J. had an 

interest in the validity of the trust because they were named as beneficiaries to receive the 

real property transferred by quitclaim deed. Timothy and Shawna were named as 

beneficiaries for the residue of the trust estate.

As the trial court’s decision establishes, Timothy, Shawn, and Timothy J. each had 

an interest in upholding the validity of the quitclaim deed and trust in order to avoid the 

real property from being devised by John’s will. John’s quitclaim deed and trust were 

intended to transfer the real property in such a way that the government would not seize 

the property in recompense for Timothy’s “tax problems.” Thus, the issues concerning 

the validity of the quitclaim deed and trust entitled the trust’s beneficiaries -- i.e., 

Timothy, Shawn, and Timothy J. -- to participate in this proceeding.

Shawna “contends that the trial court abused its discretion by not issuing a clear 

ruling on whether [Timothy, Shawn, and Timothy J.] were appearing as beneficiaries of 

the will or the trust.” We reject the contention. Probate Code section 48 does not require 

an election to proceed as a trust beneficiary or as an heir to the will. As both heirs to 

John’s will and beneficiaries of his trust, Timothy, Shawn, and Timothy J. were 

interested in this probate proceeding and were not required to appear in only one 

capacity.

In sum, the trial court did not abuse its discretion in concluding Timothy, Shawn, 

and Timothy J. had standing to participate in this probate proceeding.
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III

John’s Testamentary Capacity

Shawna argues that “[t]he finding that [John] had capacity to deliver the deed 

should be overturned even under the abuse of discretion standard, given [John’s] nonverbal physical condition, the testimony of his attending physician, and the 

uncontroverted fact that he executed two conflicting testamentary documents 

simultaneously.” We reject the arguments.

A.

Sufficiency of the Evidence

The gravamen of Shawna’s argument is that the record does not support the 

finding of John’s capacity to execute the quitclaim deed. However, on a judgment roll 

appeal, we conclusively presume evidence at trial was sufficient to support the court’s 

findings. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Thus, our review is limited 

to determining whether any error “appears on the face of the record.” (National 

Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of 

Court, rule 8.163.) On the face of the record, nothing undermines the trial court’s 

conclusion that “[b]ased on the totality of the witnesses’ statements and the credibility of 

the witnesses, as well as the fact that [Shawna] has stipulated that [John] was competent 

to execute the Will on August 30, 2011,” John had capacity to execute the quitclaim 

deed. 

Shawna appears to assert John’s testamentary capacity was refuted by Dr. Jobe’s 

testimony that a person suffering a major stroke like John’s “would probably lack the 

cognitive ability to understand documents of such complex nature as the Will, Trust and 

Deed.” (Italics added.) Again, the nature of the record in this appeal means we 

conclusively presume the trial court properly resolved the evidence in favor of its 

decision. While Dr. Jobe testified John might not have had the requisite capacity 
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generally to understand complex documents such as a will, trust, and deed read to him for 

the first time, he also testified John was more likely to be able to understand the meaning 

and effect of the will, trust, and deed if the contents were consistent with the terms of an 

estate plan with which he was already familiar. Combined with witness testimony that 

John was having a “good day” when he executed the quitclaim deed and trust, the record 

supports the trial court’s finding of requisite testamentary capacity.

B.

Conflicting Testamentary Provisions in the Will and Trust

Shawna argues the trial court erred due to its “failure to even consider and rule on 

the most relevant facts properly pleaded and ripe for adjudication,” namely that there 

were “conflicting testamentary provisions between the will and the trust.” She further 

argues that given the material inconsistency between the will and the trust, the trial court 

erred because it did not address the issue of whether “John intended to transfer away his 

interest in the real property irrevocably.” We reject these arguments because they have 

not been preserved for appeal.

As we explained in part I, a party cannot raise on appeal the issue of a trial court’s 

omission of a legal issue or finding on a contested fact unless the party first brings such 

defects to the trial court’s attention. (Arceneaux, supra, 51 Cal.3d at pp. 1133-1134.) 

The record does not show Shawna responded to the trial court’s findings after hearing by 

objecting or raising any issue she might have believed to have been improperly omitted. 

Consequently, the arguments regarding lack of findings and omitted issues are not 

reviewable.

IV

Timothy’s Motion for Sanctions on Appeal

Timothy requests that this court sanction Shawna for filing a frivolous appeal.
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Sanctions may be imposed on appeal. (Code of Civ. Proc., § 907; Cal. Rules of 

Court, rule 8.276(a).) However, sanctions are warranted “only when [the appeal] is 

prosecuted for an improper motive -- to harass the respondent or delay the effect of an 

adverse judgment -- or when it indisputably has no merit -- when any reasonable attorney 

would agree that the appeal is totally and completely without merit.” (In re Marriage of 

Flaherty (1982) 31 Cal.3d 637, 650 (Flaherty).) “The two standards under Flaherty are 

often used together, with one providing evidence of the other.” (Doran v. Magan (1999) 

76 Cal.App.4th 1287, 1295.)

Timothy asserts Shawna raises issues that cannot succeed in a judgment roll 

appeal, misstates evidence in the record, and does so for purposes of financial gain and 

delay. Thus, he urges us to conclude Shawna’s appeal is frivolous and worthy of 

sanctions. We deny the motion for sanctions. 

As the California Supreme Court has explained, “Counsel and their clients have a 

right to present issues that are arguably correct, even if it is extremely unlikely that they 

will win on appeal. An appeal that is simply without merit is not by definition frivolous 

and should not incur sanctions.” (Flaherty, supra, 31 Cal.3d at p. 650.) The Flaherty

court cautioned the use of sanctions may have “a serious chilling effect on the assertion 

of litigants’ rights on appeal.” (Ibid.) For that reason, the high court concluded, 

appellate sanctions should be imposed only in the clearest and most egregious cases. (Id.

at pp. 650-651.) This is not a case warranting imposition of sanctions.

Shawna’s opening and reply briefs properly present legal arguments for reversing 

the trial court’s order. Her opening brief correctly articulates the three general standards 

of review and acknowledges she must demonstrate prejudice to secure a reversal. In 

support of her arguments, Shawna cites case law and statutes for her arguments. Her 

arguments acknowledge case law making her position more difficult to establish. And 
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she provides a statement of facts and procedural history that is coherent and generally 

adheres to the requirement of supporting factual assertions by record citations.

In his motion for sanctions, Timothy contends all of Shawna’s arguments must fail 

because they represent attacks on the sufficiency of the evidence on a judgment roll 

appeal. However, as our resolution of Shawna’s contentions shows, sufficiency of the 

evidence represents only part of our analysis for this appeal. Although sufficiency of the 

evidence challenges are foreclosed in this judgment roll appeal, the opening brief 

displays an awareness of the limitations of the record and attempts to raise issues subject 

to de novo review that are cognizable on a clerk’s transcript alone. 

Timothy characterizes Shawna’s statement of facts as misrepresenting the facts of 

this case. Although Shawna’s statement of facts does not perfectly adhere to the 

documents cited in the record, a comparison of her opening brief with the trial court’s 

written findings reveals a general harmony between the two. Shawna’s briefs are not 

misleading.

Finally, Timothy assigns improper motives of financial gain and delay to Shawna 

and her attorney. We note Shawna’s contentions, as reflected in the trial court’s decision 

and in her appellate briefing, are consistent with her duties as executor of John’s will. In 

advancing her arguments on appeal, Shawna’s briefing is free from personal invective 

and ad hominem attacks. As to delay, we note Shawna has not requested a single 

extension of time to file her briefs. Her contentions on appeal are substantive and 

properly supported, giving no indication this appeal was taken solely for purposes of 

delay. Accordingly, Timothy’s motion for sanctions on appeal is denied.

DISPOSITION

The order confirming the validity of the quitclaim deed signed by John Dennis 

Hessler on August 30, 2011, is affirmed. Costs on appeal are awarded to respondents
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Timothy Wade Hessler, Shawn Thomas Hessler, and Timothy John Hessler. (Cal. Rules 

of Court, rule 8.278(a)(1) & (2).)

 HOCH , J.

We concur:

 RAYE , P. J.

 MURRAY , J.