The opinion
Filed 10/18/23
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
Estate of NICK MARTINO, Deceased.
D080846
NICK ZAMBITO,
Petitioner and Respondent, (Super. Ct. No. 37-2020-
000002011-PR-LA-CTL)
v.
TRACEY MARTINO et al.,
Objectors and Appellants.
APPEAL from an order of the Superior Court of San Diego County,
Julia C. Kelety, Judge. Affirmed.
Reich Radcliffe & Hoover, Richard J. Radcliffe and Marc G. Reich for
Objectors and Appellants.
Amanda Jereige; Antonyan Miranda and John Melvin for Petitioner
and Respondent.
After Nick Martino (Decedent) died intestate, his stepson from a
previous marriage, Nick Zambito, petitioned to be deemed an heir.
Decedent’s biological children, Tracey Martino and Joseph Martino (together,
Objectors), objected. After a bench trial, the probate court determined that
Decedent was Zambito’s “natural parent” under Probate Code1 sections 6540
and 6453, which define the “natural parent” and child relationship for
purposes of intestate succession.
In this appeal, we conclude that Zambito has standing to claim natural
parentage heirship even though he is not the Decedent’s biological child. We
further conclude that Probate Code section 6454, which provides a pathway
for intestate succession by stepchildren and foster children, does not operate
to foreclose other available statutory methods for a stepchild to establish a
right to intestate succession. Specifically, because section 6453, subdivision
(a) defines natural parentage for purposes of intestate succession to include
presumed parentage that is not rebutted under the Uniform Parentage Act
(UPA) (Fam. Code, § 7600 et seq.), a stepchild may establish a right to
intestate succession under Family Code section 7611, subdivision (d), which
creates a presumption of natural parentage if “[t]he presumed parent
receives the child into their home and openly holds out the child as their
natural child.” Section 6454 does not preclude this alternative pathway for
intestate succession by stepchildren. And in the absence of any challenge to
the sufficiency of evidence to support the probate court’s factual findings
under this theory, we conclude that Objectors have failed to demonstrate any
reversible error. Accordingly, we affirm the probate court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
Because neither side has disputed the probate court’s factual findings
or raised a sufficiency of evidence issue, we briefly summarize the facts as
stated in its order after trial.
1 Unless otherwise indicated, all further statutory references are to the
Probate Code.
2
A. Zambito’s and Decedent’s Relationship
Zambito’s mother, Lula Taylor, married Domenick in November 1960,
and Zambito was born six months later in May 1961. Taylor and Domenick
divorced a few years later, and Taylor married Decedent in 1966 after they
had lived together for about two years. Decedent already had a daughter,
Tracey Martino, who was born in 1960 during a previous marriage. After
being married for six years, Taylor and Decedent divorced in 1972. During
Decedent’s subsequent marriage, Joseph Martino was born in 1974. It is
undisputed that Decedent was not Zambito’s biological father.
For most of their marriage, Taylor and Decedent shared a home in San
Diego County and Zambito lived with them. Before and after Taylor and
Decedent divorced, Zambito had a close relationship with Decedent, but
Zambito had little contact with Domenick. During his childhood, Zambito
considered Decedent to be his true father.
After Zambito became an adult, he left California and served in the
army for 20 years, but he kept in touch with Decedent. After Zambito retired
from the military, he occasionally visited Decedent in San Diego, but when
Decedent’s health began to fail around 2018, Zambito increased his efforts to
visit. Zambito spoke with Decedent often and accompanied Decedent to
medical appointments.
Many of Decedent’s close personal friends said that in their frequent
contacts with Decedent, he always referred to Zambito as his son. Decedent’s
friends also referred to Zambito as Decedent’s son, and in his final years,
Decedent maintained a close relationship with Zambito.
B. Zambito’s Petition
In February 2020, after Decedent’s death, Zambito filed a petition
seeking an order declaring that he was Decedent’s lawful “stepchild heir”
3
pursuant to section 6454. (See § 11700.) Section 6454 provides for intestate
succession from a stepparent or foster parent when (1) the relationship with
the stepparent or foster parent began during the child’s minority and
continued throughout their joint lifetimes; and (2) it is proven by clear and
convincing evidence that the stepparent or foster parent would have adopted
the person but for a legal barrier.2
Zambito asserted in his original petition that his parent-child
relationship with Decedent began when he was a minor and continued
through Decedent’s lifetime. He also asserted that Decedent expressed a
desire to adopt Zambito, but Domenick objected, which posed a legal barrier
to adoption.
Zambito amended his petition in May 2020, conceding that when
Domenick died in 2004, a legal barrier to adoption no longer existed. Zambito
therefore abandoned his claim pursuant to section 6454, and instead asserted
2 Section 6454 states, in full: “For the purpose of determining intestate
succession by a person or the person’s issue from or through a foster parent
or stepparent, the relationship of parent and child exists between that person
and the person’s foster parent or stepparent if both of the following
requirements are satisfied:
“(a) The relationship began during the person’s minority and continued
throughout the joint lifetimes of the person and the person’s foster
parent or stepparent.
“(b) It is established by clear and convincing evidence that the foster
parent or stepparent would have adopted the person but for a legal
barrier.”
4
heirship under section 6455,3 which allows for inheritance through equitable
adoption.
In January 2021, Zambito filed a second amended petition, this time
adding a theory of inheritance under Probate Code section 6453, subdivisions
(a) and (b)(2). Those provisions state that a “natural parent and child
relationship” is established for intestate succession purposes when (1) the
relationship is presumed and not rebutted pursuant to the Uniform
Parentage Act (UPA) in the Family Code, or (2) in actions brought under
Family Code section 7630, subdivision (c), where clear and convincing
evidence establishes that the parent has openly held out the child as that
parent’s own. (Prob. Code, § 6453, subds. (a) & (b)(2); see Fam. Code, § 7600,
et seq.)
Objectors opposed the second amended petition, arguing that Decedent
never intended to adopt Zambito and never held him out as his son. They
contended that Zambito “did not share the close, father-son relationship
falsely alleged by Zambito.” Objectors also argued that Zambito could not
claim “natural parentage” because he was not related by blood to Decedent.
Near the end of a five-day bench trial, the court granted Objectors’
motion for judgment as to Zambito’s equitable adoption claim, ruling that he
failed to prove Decedent’s intent to adopt. After the trial, however, the court
granted Zambito’s petition as to heirship under both of his section 6453
theories. (See Prob. Code, § 6453, subds. (a) & (b)(2).) First, applying section
6453, subdivision (a), the court found that Decedent was Zambito’s presumed
parent under the UPA, pursuant to Family Code section 7611, subdivision
3 Section 6455 provides: “Nothing in this chapter affects or limits
application of the judicial doctrine of equitable adoption for the benefit of the
child or the child’s issue.”
5
(d), which applies when “[t]he presumed parent receives the child into their
home and openly holds out the child as their natural child.” The court noted
that the relationship between a petitioner and decedent need not be biological
to establish a presumption of parentage under the UPA. The court further
found that Objectors failed to rebut the presumption of parentage (see Fam.
Code, § 7612, subd. (a)), and that any competing presumption that Domenick
was Zambito’s natural parent should not control (see id., subd. (b)4). Second,
the court also found that Zambito met his burden, under his alternative
theory pursuant to section 6453, subdivision (b)(2), of showing that Decedent
openly held him out as his son.
More specifically, the probate court made factual findings that the
relationship between Decedent and Zambito began in Zambito’s childhood
and continued over fifty years until Decedent’s death; that the relationship
was that of a child to a parent; that Decedent received Zambito into his home
both in Zambito’s childhood and when he was an adult; and that Decedent
held out Zambito as his natural child throughout Zambito’s life. The court
made all of its factual findings by clear and convincing evidence.
Objectors timely appealed. They do not challenge the sufficiency of
evidence to support any of the probate court’s factual findings.
4 Family Code section 7612, subdivision (b), provides in relevant part:
“If two or more presumptions arise under [Family Code] Section 7611
that conflict with each other, or if one or more presumptions under
[Family Code] Section 7611 conflict with a claim by a person identified
as a genetic parent pursuant to [Family Code] Section 7555, the
presumption that on the facts is founded on the weightier
considerations of policy and logic controls.”
6
DISCUSSION
I
Objectors first argue that Zambito lacked standing to claim “natural
parentage” for heirship purposes because it is undisputed that he is not
Decedent’s biological child. In response, Zambito contends that a petitioner
need not be biologically related to a decedent to establish “natural parentage”
under the UPA. This is a question of statutory interpretation based on
undisputed facts, which we review de novo. (Martinez v. Vaziri (2016) 246
Cal.App.4th 373, 382 (Martinez).)
A. Governing Law
A “personal representative, or any person claiming to be a beneficiary
or otherwise entitled to distribution of a share of the estate, may file a
petition for a court determination of the persons entitled to distribution of the
decedent’s estate.” (§ 11700.) “ ‘Intestate succession is governed entirely by
statute.’ [Citations.] ‘The heirs of a person are those whom the law appoints
to succeed at the decedent’s death to his or her estate in case of intestacy, by
virtue of the statutes of succession.’ [Citation.]” (Estate of Britel (2015) 236
Cal.App.4th 127, 135 (Britel).)
When there is no surviving spouse, the intestate share of the estate
passes “[t]o the issue of the decedent, the issue taking equally if they are all
of the same degree of kinship to the decedent . . . .” (§ 6402, subd. (a).)
“ ‘Issue’ of a person means all his or her lineal descendants of all generations,
with the relationship of parent and child at each generation being determined
by the definitions of child and parent.” (§ 50.) “Child” means “any individual
entitled to take as a child under this code by intestate succession from the
parent whose relationship is involved.” (§ 26.) “Parent” is defined as “any
7
individual entitled to take as a parent under this code by intestate succession
from the child whose relationship is involved.” (§ 54.)
Sections 6450 through 6455 define “the parent-child relationship for
purposes of intestate succession.” (Estate of Ford (2004) 32 Cal.4th 160, 165.)
Under section 6450, a parent-child relationship “exists between a person and
the person’s natural parents, regardless of the marital status of the natural
parents.” (§ 6450, subd. (a); Britel, supra, 236 Cal.App.4th at p. 135.)
Section 6453 describes how a “child may show whether someone is a
natural parent for purposes of intestate succession.” (Estate of Chambers
(2009) 175 Cal.App.4th 891, 895 (Chambers); Britel, supra, 236 Cal.App.4th
at p. 136.) The statute “contains the rules for determining who is a ‘natural
parent.’ ” (Estate of Burden (2007) 146 Cal.App.4th 1021, 1026.)
As relevant here, Probate Code section 6453 sets forth two different
pathways to natural parentage. First, section 6453, subdivision (a) states:
“A natural parent and child relationship is established where that
relationship is presumed and not rebutted pursuant to the Uniform
Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the
Family Code).”5 (See Estate of Griswold (2001) 25 Cal.4th 904, 921.) Thus,
the intestacy provisions of the Probate Code defining natural parentage
explicitly “incorporate the UPA to determine presumed fatherhood.” (Scott v.
5 The substance of this provision has been part of California probate law
on intestate succession since California adopted the UPA in 1975. It was first
enacted as former Probate Code section 25, subdivision (d). (Stats. 1975,
ch. 1244, § 25.) In 1983, it became part of former Probate Code section 6408
(Stats. 1983, ch. 842, § 55), then in 1993, it was moved to what is now
Probate Code section 6453, subdivision (a). (Stats. 1993, ch. 529, § 5.) In
each of these versions, this provision incorporated by reference the presumed
parentage provisions of the UPA, which since 1975 has always included the
substance of what is now Family Code section 7611, subdivision (d), formerly
Civil Code section 7004, subdivision (a)(4).
8
Thompson (2010) 184 Cal.App.4th 1506, 1514 (Scott).) And under the UPA, a
man may attain the status of presumed father if he “receives the child into
[his] home and openly holds out the child as [his] natural child.” (Fam. Code,
§ 7611, subd. (d); see Scott, at p. 1512.)
Second, Probate Code section 6453, subdivision (b) states: “A natural
parent and child relationship may be established pursuant to any other
provisions of the Uniform Parentage Act, except that the relationship may
not be established by an action under subdivision (c) of Section 7630 of the
Family Code unless any of the following conditions exist: [¶] . . . [¶]
(2) Parentage is established by clear and convincing evidence that the parent
has openly held out the child as that parent’s own.”
By its terms, section 6453, subdivision (b) applies only if a natural
parent and parent child relationship is “established pursuant to any other
provisions of the Uniform Parentage Act . . . .” In context, this language
evidently refers to provisions of the UPA other than the presumed parentage
provisions referred to in subdivision (a). Thus, subdivision (b) applies only if
a natural and parent child relationship is established under some provision of
the UPA other than the presumed parentage provisions.6
Finally, section 6454 is a separate provision allowing intestate
succession from a stepparent or foster parent. It states:
“For the purpose of determining intestate succession by a
person or the person’s issue from or through a foster parent
or stepparent, the relationship of parent and child exists
between that person and the person’s foster parent or
6 Neither Zambito nor the probate court identified any such “other
provision[]” of the UPA as a basis for applying section 6453, subdivision (b).
Because subdivision (b) therefore appears to be inapplicable here, we focus
our analysis on the probate court’s other theory of intestate succession under
Probate Code section 6453, subdivision (a) and Family Code section 7611,
subdivision (d).
9
stepparent if both of the following requirements are
satisfied:
“(a) The relationship began during the person’s minority
and continued throughout the joint lifetimes of the person
and the person’s foster parent or stepparent.
“(b) It is established by clear and convincing evidence that
the foster parent or stepparent would have adopted the
person but for a legal barrier.” (Prob. Code, § 6454.)
Under this statute, the Supreme Court has concluded that the legal
barrier to adoption must exist throughout the joint lifetimes of the foster
child or stepchild and the foster parent or stepparent, even if the foster child
or stepchild is an adult by the time of the decedent’s death. (Estate of Joseph
(1998) 17 Cal.4th 203, 211–216 (Joseph); see Fam. Code, § 9300, subd. (a)
[“An adult may be adopted by another adult, including a stepparent . . . .”].)
B. Analysis
Objectors first assert that Zambito lacks standing to assert a claim of
natural parentage for heirship purposes solely because he is not the
Decedent’s biological child. We find no authority for that position under
contemporary California law, and ample support to the contrary.
As noted, for purposes of intestate succession, section 6453, subdivision
(a) incorporates by reference the presumed parentage provisions of the UPA,
including Family Code section 7611, subdivision (d). The UPA in turn
defines a “natural parent” as “a nonadoptive parent established under this
part, whether biologically related to the child or not.” (Fam. Code, § 7601,
subd. (a), italics added.)
The plain language of this statute defeats Objectors’ argument based
on biology. It makes no difference that this provision appears in the portion
of the Family Code incorporated by reference into the Probate Code, rather
10
than in the Probate Code itself. When two codes are to be construed, they
must be regarded as blending into each other and forming a single statute.
(State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 955
(Public Health).)
Our Supreme Court has also made clear that a biological connection is
not required to establish presumed parentage by someone who receives a
child into his home and openly holds out the child as his natural child under
Family Code section 7611, subdivision (d). (Elisa B. v. Superior Court (2005)
37 Cal.4th 108, 120–124; In re Nicholas H. (2002) 28 Cal.4th 56, 62–70.)
Other California courts have similarly found that a man “with no
biological connection to the child, no marital connection to the mother, and no
way to satisfy the statutory presumption of paternity may nevertheless be
deemed a presumed father” under Family Code section 7611, subdivision (d),
if he can prove “an existing familial relationship with the child,” a bond the
likes of which “ ‘should not be lightly dissolved.’ ” (In re D.M. (2012) 210
Cal.App.4th 541, 554 (D.M.); A.G. v. County of Los Angeles (2018) 28
Cal.App.5th 373, 380 [rejecting argument that standing to sue based on
presumed parentage requires biological relationship].) Indeed, in Britel, the
court found that even having a biological relationship was not dispositive of
whether someone was a natural parent within the meaning of Probate Code
sections 6450 and 6453. (Britel, supra, 236 Cal.App.4th at p. 136.) Along
those lines, the court in In re A.A. (2003) 114 Cal.App.4th 771 (A.A.), found
that a child’s nonbiological father had presumed father status over her
biological father because the nonbiological father met the requirements in
Family Code section 7611, subdivision (d), while her biological father did not.
(Id. at p. 784.) The “elevated status” of presumed parenthood is intended to
11
“ ‘distinguish those who have demonstrated a commitment to the child
regardless of biology . . . .’ ” (Martinez, supra, 246 Cal.App.4th at p. 377.)
In In re Alexander P. (2016) 4 Cal.App.5th 475 (Alexander P.), the court
specifically found that a stepfather qualified as a presumed parent under
Family Code section 7611, subdivision (d). (Id. at pp. 479–480, 492–496.)
The court noted that “ ‘ “[b]iological fatherhood does not, in and of itself,
qualify a man for presumed father status under [Family Code] section 7611.
On the contrary, presumed father status is based on the familial relationship
between the man and child, rather than any biological connection.” ’ ” (Id. at
p. 485, italics added.) Moreover, the requirement that the presumed parent
openly hold out the child as his “natural child” (Fam. Code, § 7611, subd. (d))
“does not require proof that the presumed parent claims the child as his or
her biological child.” (Alexander P., at p. 493.) In other words, the statute
“does not require a presumed parent who is not a biological parent to pretend
otherwise.” (Ibid.)
Although Objectors attempt to distinguish these and similar cases
involving the UPA because they do not involve the specific heirship fact
pattern here, they cannot avoid the fact that the intestacy provisions of the
Probate Code explicitly “incorporate the UPA to determine presumed
fatherhood.” (Scott, supra, 184 Cal.App.4th at p. 1514.) As noted, “ ‘[t]he
heirs of a person are those whom the law appoints to succeed at the
decedent’s death to his or her estate in case of intestacy’ ” (Britel, supra, 236
Cal.App.4th at p. 135, italics omitted), and section 6453, subdivision (a),
defines such a category of heirs with express reference to the UPA. Thus,
California law governing the presumed parentage provisions of the UPA is
applicable in determining intestate succession under the Probate Code. (See,
e.g., Wehsener v. Jernigan (2022) 86 Cal.App.5th 1311, 1324, 1327 (Wehsener)
12
[couple who took abandoned nonbiological child into their home were
presumed parents of child for purposes of intestate succession under Probate
Code section 6453, subdivision (a) and Family Code section 7611,
subdivision (d)].)
Objectors point to the Law Revision Commission Comments
accompanying sections 26 (defining “child”) and 54 (defining “parent”), to
argue that the Probate Code defines “child” to mean “biological child.”
Specifically, Objectors rely on comments noting that a stepchild is not
included within the meaning of “child,” and a stepparent is not included
within the meaning of “parent,” on the basis of that relationship alone. (Cal.
Law Revision Com. com., 52 West’s Ann. Prob. Code (2002 ed.) foll. § 26, p. 27
[stepchild “is not included within the meaning of ‘child’ only on the basis of
that relationship”]; Cal. Law Revision Comm. com., 52 West’s Ann. Prob.
Code (2002 ed.) foll. § 54, p. 49 [stepparent “is not included within the
definition of ‘parent’ on the basis of that relationship alone”].) But those
comments do not purport to preclude a stepchild from establishing a natural
parent and child relationship based on facts other than just the
stepparent/stepchild relationship, such as a presumed parent relationship
under Probate Code section 6453, subdivision (a) and Family Code section
7611, subdivision (d).
II
In an effort to circumvent the UPA’s prioritization of the familial
nature of a parent-child relationship over the biological connection, Objectors
reprise an argument on appeal that they raised for the first time during
closing arguments at trial: that section 6454 is the exclusive path to heirship
for Zambito as an unadopted stepchild. According to Objectors, Zambito was
required to bring his petition under section 6454—a pathway he abandoned
13
because he could not show that a legal barrier to adoption persisted until
Decedent’s death.
We disagree. Nothing in the Probate Code says that a stepchild is
precluded from establishing the existence of a natural parent and child
relationship under Probate Code section 6453, subdivision (a) and
incorporated provisions of the UPA, including Family Code section 7611,
subdivision (d). These provisions do not contain any exception for
stepchildren. Under normal rules of statutory construction, a statute is
presumed to govern every case in which it applies by its terms—unless some
other statute creates an express exception. (Tan v. Appellate Division of
Superior Court (2022) 76 Cal.App.5th 130, 139.) Section 6454 is not framed
as an express exception to section 6453 and does not state that it is the
exclusive method for a stepchild to establish intestate succession. Moreover,
courts may only read an implied exception into a statute when necessary to
harmonize two irreconcilable provisions or ensure that the Legislature does
not enact a nullity. (Santa Clarita Organization for Planning & the
Environment v. Abercrombie (2015) 240 Cal.App.4th 300, 319.)
We conclude that sections 6453 and 6454 can be harmonized without
creating an implied exception to either statute or rendering one a nullity. “ ‘A
court must, where reasonably possible, harmonize statutes, reconcile seeming
inconsistencies in them, and construe them to give force and effect to all of
their provisions.’ [Citations.]” (Pacific Palisades Bowl Mobile Estates, LLC v.
City of Los Angeles (2012) 55 Cal.4th 783, 805.) This rule applies even where,
as here, “ ‘one of the statutes involved deals generally with a subject and
another relates specifically to particular aspects of the subject.’ [Citation.]”
(Ibid.) When construing two codes, “they ‘must be read together and so
construed as to give effect, when possible, to all the provisions thereof.’
14
[Citations.]” (Ibid.) Our Supreme Court has harmonized potentially
conflicting statutes by “choosing one plausible construction of a statute over
another in order to avoid a conflict with a second statute. [Citations.]”
(Public Health, supra, 60 Cal.4th at p. 956.)
The harmonization rule focuses on the texts of the statutes, not their
purposes, and asks whether the texts can be harmonized. (Public Health,
supra, 60 Cal.4th at p. 956; People v. Superior Court of Riverside County
(2022) 81 Cal.App.5th 851, 874 (Riverside County).) Comparing their texts,
we conclude that sections 6453 and 6454 are not irreconcilable and can be
harmonized to give both effect because each section may apply to different
situations, each has requirements the other does not, and neither expressly
prohibits what the other permits. (See Riverside County, at p. 873
[harmonizing statutes that are not so inconsistent that they “cannot have
concurrent operation[]”].)
For example, someone who is neither a stepchild nor a foster child
could not obtain heirship under section Probate Code 6454, but could still
seek heirship under section 6453. Under Probate Code section 6453,
subdivision (a), one can establish a “natural parent and child relationship” by
showing, pursuant to Family Code section 7611, subdivision (d), that the
“presumed parent receive[d] the child into their home and openly [held] out
the child as their natural child.” (Fam. Code, § 7611, subd. (d).) While
section 6454, subdivision (a), requires that the relationship begin in the
child’s minority and continue “throughout the joint lifetimes” of the child and
parent, there is no such durational requirement for how long a parent
“receives the child into their home” under Family Code section 7611,
subdivision (d). (See W.S. v. S.T. (2018) 20 Cal.App.5th 132, 145 [“A father
does not need to receive the child into his home for a specific period of time,
15
although cohabitation for an extended period of time may strengthen a claim
for presumed parent status”]; Jason P. v. Danielle S. (2017) 9 Cal.App.5th
1000, 1021 [“A party seeking to establish he is a presumed parent is not
required to show that he acted as a parent to the child for a specific period.”].)
And while section 6454 requires clear and convincing evidence that the
parent would have adopted the petitioner “but for a legal barrier,” there is no
such requirement in section 6453 or Family Code section 7611.
Conversely, someone could qualify for intestate succession under
section 6454, but not section 6453. Section 6454 does not require that the
stepparent or foster parent receive the child into their home or hold the child
out as their natural child. Whereas Family Code section 7611, subdivision
(d), places emphasis on the child living in or at least visiting the presumed
parent’s home, section 6454 makes no mention of “home.” (See D.M., supra,
210 Cal.App.4th at p. 550 [supervised two-hour visits between mother’s
boyfriend and child at a third-party’s home were insufficient to show
boyfriend received the child into his home for purposes of Family Code
section 7611, subdivision (d)]; A.A., supra, 114 Cal.App.4th at p. 784 [finding
nonbiological father received child into his home, even though she did not live
with him, because she visited him there].) Section 6454, subdivision (a),
instead focuses on the continuity of the familial relationship, regardless of
where the parent or child resides. (See Estate of Stevenson (1992) 11
Cal.App.4th 852, 860 [holding that section 6454’s predecessor “does not
expressly require continuity in living arrangements as a prerequisite for a
continuous relationship[]”].)
We therefore conclude that the texts of the statutes can be harmonized
without reading a judicial exception into section 6453 for stepchildren and
foster children. Both statutes can be given effect in the specific
16
circumstances they apply without rendering the other a nullity. Neither
permits intestate succession when the other would forbid it. (See Riverside
County, supra, 81 Cal.App.5th at p. 874 [“nothing in the statutes’ texts
prohibits interpreting them together”].)
This interpretation is not inconsistent with Joseph, which analyzed
section 6454 and found that to inherit under that provision, the legal barrier
to adoption must have continued to exist through the joint lifetimes of the
child and decedent. (Joseph, supra, 17 Cal.4th 203 at pp. 206–207.)
Objectors contend that Joseph forecloses a stepchild from pursuing heirship
under section 6453, but the opinion in that case made no reference to section
6453. While the Supreme Court noted in Joseph that historically,
stepchildren were excluded from the definition of “child,” the Court
recognized that the Probate Code eventually provided a pathway for
stepchildren to inherit in the manner prescribed by section 6454. (Joseph, at
pp. 210–211.) Contrary to what Objectors contend, at no point did the Court
state that section 6454 was the only pathway to intestate succession
available to a stepchild.7
7 Other cases cited by Objectors did not decide this issue either. (Steed v.
Imperial Airlines (1974) 12 Cal.3d 115, 118–126 [unadopted stepchild was not
“heir” who could sue for wrongful death under provisions of Probate Code
predating extensive amendments to intestate succession in early 1980s];
Estate of Cleveland (1993) 17 Cal.App.4th 1700, 1704–1708 [same issue as
Joseph]; Chambers, supra, 175 Cal.App.4th at pp. 894–897 [clear and
convincing evidence standard required under Probate Code section 6453,
subdivision (a) and Family Code section 7630, subdivision (c)].) Although
Chambers concluded that the probate court had erred by relying on Family
Code section 7611, subdivision (d) “by way of Probate Code section 6453,
subdivision (a)” where the presumed father was deceased (Chambers, at
p. 895), this holding was based on language in former Family Code section
7630, subdivision (c) that has since been deleted from the statute. (See V.S.
v. M.L. (2013) 222 Cal.App.4th 730, 734 [2010 amendment deleted language
17
Finally, we can think of no compelling reason why the Legislature
would have made someone in Zambito’s position eligible for heirship under
section 6454, but not under section 6453, just because his mother was once
married to Decedent. By that logic, Zambito would have been better off, for
inheritance purposes, if Decedent had never married Zambito’s mother. This
would not serve the Legislature’s strong public policy favoring marriage,
“ ‘rooted in the necessity of providing an institutional basis for defining the
fundamental relational rights and responsibilities of persons in organized
society.’ [Citation.]” (Koebke v. Bernardo Heights Country Club (2005) 36
Cal.4th 824, 844.) Harmonizing sections 6453 and 6454 as alternative
pathways to inheritance thus avoids an illogical result. (John v. Superior
Court (2016) 63 Cal.4th 91, 96 [“We construe the statute’s words in context,
and harmonize statutory provisions to avoid absurd results.”].)
This is also consistent with our recent decision in Wehsener, supra, 86
Cal.App.5th 1311. There, a couple took an abandoned two-year old child
(Judy) into their home and raised her as their own. After the husband died
without a will many decades later, we affirmed the probate court’s ruling that
Judy was his intestate heir applying a natural parentage theory under
Probate Code section 6453, subdivision (a) and Family Code section 7611,
subdivision (d). (Wehsener, at pp. 1314–1315, 1324–1328.) Although
Wehsener did not decide the issue, it would be peculiar for the Legislature to
allow this as a valid theory of intestate succession from natural parents who
raised but have no biological connection to the child (as in Wehsener), but not
in otherwise comparable circumstances when the decedent raised the child
with a spouse who was the child’s biological parent. We must give statutes “a
from subdivision (c) making it applicable “to a child who has no presumed
father under Section 7611 or whose presumed father is deceased”].)
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reasonable and common-sense construction consistent with the apparent
purpose and intention of the lawmakers—a construction that is practical
rather than technical, and will lead to wise policy rather than mischief or
absurdity.” (Upland Police Officers Assn. v. City of Upland (2003) 111
Cal.App.4th 1294, 1303.)
Accordingly, we conclude that Zambito did not lack standing to pursue
heirship under Probate Code section 6453, subdivision (a) and Family Code
section 7611, subdivision (d) merely because he was not Decedent’s biological
son.8 As noted, Objectors do not otherwise challenge the sufficiency of
evidence to support the probate court’s findings on heirship under this theory
of natural parentage. Thus, Objectors have failed to demonstrate any error
in the probate court’s ruling.
III
Objectors next contend that Zambito was judicially estopped from
claiming Decedent was his “natural parent” because in an earlier probate
proceeding in Nevada, he claimed that Domenick was his “natural father.”
They also assert that the probate court erred by denying their request for a
statement of decision on this issue as untimely. We conclude that Objectors
8 To the extent Objectors are asserting that Zambito lacked standing
under Family Code section 7630, we reject this argument as well. Zambito
had standing under Probate Code section 11700, which authorizes a petition
by any person claiming to be entitled to distribution of a share of the estate.
Even assuming that Family Code section 7630’s standing requirements also
apply to a probate proceeding (which we need not decide), subdivision (b)
permits “[a]ny interested party” to bring an action to establish a presumed
parent relationship under Family Code section 7611, subdivision (d). As the
trial court ruled, “the child seems like they would be the most interested
person.” Although Objectors argued to the contrary below, they do not do so
on appeal.
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have forfeited the judicial estoppel issue, and in any event, any error would
be harmless because the issue lacks merit.
In their response to Zambito’s petition, Objectors asserted nine
boilerplate “affirmative defenses,” each consisting of a single conclusory
sentence without supporting facts. These “defenses” were: failure to state a
claim, lack of capacity, unclean hands, unjust enrichment, misjoinder or
nonjoinder, laches, estoppel, waiver, and statute of limitations. With regard
to estoppel, the response merely asserted: “Estoppel: The Petition and its
purported causes of action are barred in whole or [in] part due to the doctrine
of estoppel.” Objectors did not specify that they were asserting judicial
estoppel or mention anything about the Nevada probate proceeding.
The parties’ joint trial readiness conference report listed the legal
issues in dispute. It again did not mention judicial estoppel. One of the
listed issues was “whether [Objectors] have sufficient evidence to establish
their affirmative defenses.” During trial, Objectors introduced into evidence
documents from the Nevada probate proceeding, including Domenick’s will
stating that he was the “natural father of Nick Anthony Zambito”, Zambito’s
petition for probate of the will identifying himself as Domenick’s “son”, and
the Nevada probate court’s order admitting the will to probate. Zambito also
testified at trial about inheriting from Domenick’s estate. However,
Objectors’ counsel never argued judicial estoppel at any point during the
trial, including in closing arguments. In closing arguments, Objectors’
counsel referred to the Nevada probate proceeding only to argue that any
“presumption under section 7611 is rebutted by a [Nevada] judgment
establishing parentage of the child by another person.”
Counsel for both sides submitted the matter for decision immediately
after closing arguments on April 22, 2022. On May 5, 2022, the court issued
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its order granting Zambito’s petition. Three weeks later, Objectors for the
first time requested a statement of decision on judicial estoppel.
In these circumstances, we conclude that Objectors forfeited their claim
of judicial estoppel by failing to properly assert or develop it in a timely
manner in the probate court. (Araiza v. Younkin (2010) 188 Cal.App.4th
1120, 1127.) Their response to Zambito’s petition asserted only a generic
“estoppel” defense without specifying judicial estoppel and without pleading
any supporting facts. There are multiple forms of estoppel in California law,
including equitable estoppel, collateral estoppel, promissory estoppel, and
election of remedies. Objectors never mentioned judicial estoppel or the
factual basis for it until after the trial had concluded, the matter had been
submitted, and the probate court had issued its order of May 5, 2022 granting
Zambito’s petition. The probate court was not required to guess what form of
estoppel Objectors were asserting or what facts they were basing it on. Nor
was it required to rule on a defense theory not properly asserted until after
the matter was fully tried, argued, and submitted. Thus, the issue is
forfeited. (See Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606, 630
[defendants “forfeited a defense of judicial estoppel by failing to raise it until
after the jury returned its verdict”]; Colony Ins. Co. v. Crusader Ins. Co.
(2010) 188 Cal.App.4th 743, 751 [“Because Colony failed to raise the issue of
waiver/estoppel until its post-trial objections to the statement of decision, it
forfeited the argument”].)
Even if the issue were preserved, however, and even assuming the
probate court erred in failing to issue a statement of decision on judicial
estoppel, we would still find any error to be harmless because we
independently conclude that the defense lacks merit. (F.P. v. Monier (2017)
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3 Cal.5th 1099, 1108 [erroneous failure to issue statement of decision is
subject to harmless error review].)
Objectors argue that judicial estoppel applies in this case because
Zambito’s position in the current proceeding is contrary to the position he
took when inheriting from Domenick. Judicial estoppel is aimed to prevent a
party from “changing its position over the course of judicial proceedings when
such positional changes have an adverse impact on the judicial process . . . .”
(Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181.) “[I]t is
well established that, for the doctrine to apply, the seemingly conflicting
positions ‘must be clearly inconsistent so that one necessarily excludes the
other.’ [Citation.]” (Id. at p. 182.) The party being estopped must also have
successfully asserted the first inconsistent position, or in other words, “the
tribunal adopted the position or accepted it as true[.]” (Id. at p. 184.)
Objectors’ judicial estoppel defense lacks merit for two reasons. First,
Zambito’s assertion in this proceeding that Decedent was his “natural parent”
under Probate Code section 6453 was not necessarily inconsistent with
Zambito’s prior position that he could inherit as Domenick’s son under his
will. As noted, Family Code section 7601 recognizes that a person can have a
“natural parent” who is not one of the two biological parents. (Fam. Code,
§ 7601, subd. (a).) Subdivision (c) further states that “[t]his part does not
preclude a finding that a child has a parent and child relationship with more
than two parents.” (Id., subd. (c).) In specified circumstances, a court may
even find that more than two persons with a claim to parentage under
Family Code section 7611 are parents. (Fam. Code, § 7612, subd. (c); see
In re Donovan L. (2016) 244 Cal.App.4th 1075, 1088–1091.) “There is nothing
inherently improper in conferring a right to inherit from two separate
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paternal stocks.”9 (Estate of Bassi (1965) 234 Cal.App.2d 529, 553 [noting
that historically, an adopted child could inherit from both natural father and
adoptive father].)
Second, even assuming any inconsistency, there is no evidence that the
Nevada probate court made any finding that Domenick was Zambito’s
biological or natural parent. Zambito was a named contingent beneficiary in
Domenick’s will, and because Domenick did not die intestate, the intestate
succession provisions did not apply to the distribution of his estate. (See
§ 6400.) Zambito averred that he was Domenick’s son, but the documents in
the record regarding Domenick’s estate—including a Nevada court order
admitting Domenick’s will to probate—do not make any finding on the issue.
Accordingly, the record does not establish that the Nevada probate court
actually adopted or accepted any argument or position of Zambito’s that is
inconsistent with anything he has asserted in this case. For both of these
reasons, Objectors’ judicial estoppel argument would fail on the merits even if
it were preserved.
9 As an exception to this general rule, “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.” (Estate of Franco (2023) 87
Cal.App.5th 1270, 1278, citing Estate of Cornelius (1984) 35 Cal.3d 461, 463–
464.) But the conclusive presumption of Family Code section 7540 only
applies to “the child of spouses who cohabited at the time of conception and
birth.” (Fam. Code, § 7540, subd. (a).) There is no evidence that Domenick
and Taylor were married or cohabited at the time of Zambito’s conception;
they did not get married until five months before his birth. Objectors have
not argued that Estate of Cornelius applies here.
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DISPOSITION
The order is affirmed. Respondent shall recover his costs on appeal.
BUCHANAN, J.
WE CONCUR:
HUFFMAN, Acting P.J.
CASTILLO, J.
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