Filed 3/5/13 Retirement Bd. of the City and County of San Francisco v. Butler CA1/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


RETIREMENT BOARD OF THE CITY
AND COUNTY OF SAN FRANCISCO,
         Plaintiff,                                                  A133608

v.                                                                   (City & County of San Francisco
MARIE KOLB BUTLER,                                                   Super. Ct. No. CGC-10-499309)
         Defendant and Respondent;
JOHNNIE DAVID BYRD III,
         Defendant and Appellant.


                                                INTRODUCTION
         The Retirement Board (Retirement Board) of the City and County of San
Francisco (City) filed an interpleader action with respect to $102,663.16 death benefits
payable under the San Francisco Employees‘ Retirement System (SFERS) account for its
deceased employee, Johnnie David Byrd (decedent). Decedent‘s son, Johnnie David
Byrd III, appeals from a judgment of the City and County of San Francisco Superior
Court determining that Marie Kolb Butler, decedent‘s designated beneficiary and former
domestic partner under the City Charter and City Administrative Code, was entitled to
those retirement benefits. We shall affirm the judgment.
                                                 BACKGROUND
         Decedent was an employee of the City and a member of the SFERS at all relevant
times. Respondent and decedent registered with the City as domestic partners in March


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2008, pursuant to Chapter 62 of the San Francisco Administrative Code. On August 19,
2008, decedent executed a ―Change of Beneficiary Active Member‖ form, changing the
beneficiary of his SFERS death benefits from appellant to respondent, with appellant
listed as a contingent beneficiary in the event respondent did not survive the decedent. In
the change of beneficiary form, respondent is identified in the ―relationship‖ box as
―Dom. Partner.‖ The domestic partnership between appellant and decedent was
dissolved on November 3, 2008, by decedent‘s executing and filing a notarized ―Notice
for Ending a Domestic Partnership‖ with the City, and his serving the same on
respondent. (S.F. Admin. Code, § 62.4.) Decedent died testate on April 12, 2009. 1
Between the end of the domestic partnership and decedent‘s death, the beneficiary
designation naming respondent as the primary beneficiary of decedent‘s death benefits
was not changed.
       According to a declaration filed by the Jay Huish, deputy director of SFERS,
―SFERS is required to pay death benefits to the member‘s estate or designated
beneficiary under [the City] Charter [section]A8.587-5(a). SFERS‘ longstanding practice
is to pay the designated beneficiary first pursuant to the terms of the Change of
Beneficiary form executed by the member and filed with SFERS.‖ SFERS notified
respondent that she might be entitled to a death benefit as decedent‘s primary beneficiary.
Appellant asserted a claim to the death benefit and provided a copy of the notice of the
ending of the domestic partnership. Respondent sent to SFERS a handwritten note
allegedly from decedent expressing his intent to leave her as his beneficiary for
retirement purposes, notwithstanding the end of their domestic partnership.
       As conflicting demands were made for the decedent‘s death benefit, the
Retirement Board filed the instant complaint in interpleader, seeking an order
interpleading the funds and discharging it from liability on account of the death benefit.
On September 30, 2010, the superior court granted that motion and filed an order

       1
        Because his will and trust were executed before decedent‘s domestic partnership
with respondent, they were not material to decedent‘s intent regarding the interpleaded
funds.


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discharging the Retirement Board from liability, dismissing it from the action and
ordering appellant and respondent to litigate the matter.
       At the one-day court trial, the court refused to admit the note proffered by
respondent into evidence, finding it lacked adequate foundation despite respondent‘s
testimony that it was the decedent‘s handwriting, where respondent did not testify she
saw the decedent writing it, and where appellant testified it did not look like decedent‘s
handwriting. The court determined the signature did not match the decedent‘s
handwriting. This determination is not challenged on appeal.
       Nevertheless, the trial court ruled in favor of respondent in an oral statement of
decision, rendered on September 21, 2011. The court observed that it had initially
concluded there appeared to be a conflict between the City Charter provision A8 (relating
to employee death and retirement benefits) and Probate Code section 5600 (voiding
nonprobate transfers to a spouse, where executed before or during marriage, if, at the
time of the transferor‘s death, the marriage has been dissolved or annulled).2 However,
the court was persuaded by the argument of respondent‘s counsel that the domestic
partnership was not recognized by the state because it was not registered with the
California Secretary of State as required by Family Code sections 297 and 298, and
therefore, the court ―should not use Probate Code section 5600.‖ The court concluded
―that because Ms. Butler and Mr. Byrd, the decedent, failed to comply with state law, i.e.,
registering the domestic partnership with the state, that actually there was no conflict
anymore because state law, i.e. [section] 5600, would not apply, and therefore the Court
in this instance . . . has determined that because there was no conflict of law, the charter
would apply, and because the charter applies, that means that the existing designation
of . . . Ms. Butler would prevail in this particular instance . . . .‖
       Judgment was entered on October 11, 2011, and this timely appeal followed.




       2
           All statutory references are to the Probate Code, unless otherwise indicated.


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                                        DISCUSSION
                                        I. The Merits
       We begin with the standard of review: ―We presume the superior court‘s order to
be correct and indulge all intendments and presumptions to support it regarding matters
as to which the record is silent. [Citations.] [The appealing parties] have the burden to
affirmatively show error. [Citation.] [¶] ‗As to pure questions of law, such as procedural
matters or interpretations of rules or statutes, we exercise our independent judgment.
[Citations.]‘ [Citation.] The application of a statute to undisputed facts also presents a
question of law subject to de novo review. [Citation.] To the extent our review requires
consideration of the superior court‘s determination of disputed factual issues, we affirm
these findings if substantial evidence supports them. [Citation.]‖ (Phillips, Spallas &
Angstadt, LLP v. Fotouhi (2011) 197 Cal.App.4th 1132, 1138-1139; see Eisenberg, et al.,
Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2012) ¶¶ 8:33, 8:35,
8:39, pp. 8.18 to 8.20 (Eisenberg, et al., Civil Appeals and Writs).)
       Appellant contends that the judgment must be reversed because the trial court
relied upon the lack of registration of the domestic partnership with the state, where no
evidence whatsoever was presented on that issue; the judgment was not supported by
sufficient evidence; and respondent did not meet her burden of proving that section 5600
did not apply in this case.
       At trial, the primary dispute centered on the applicability of section 5600,
subdivisions (a) and (b) and whether the requirements of subdivision (b) regarding the
decedent‘s intent were met. Section 5600 provides in relevant part:
       ―(a) Except as provided in subdivision (b), a nonprobate transfer to the transferor‘s
former spouse, in an instrument executed by the transferor before or during the marriage,
fails if, at the time of the transferor‘s death, the former spouse is not the transferor‘s
surviving spouse as defined in Section 78, as a result of the dissolution or annulment of
the marriage. A judgment of legal separation that does not terminate the status of
husband and wife is not a dissolution for purposes of this section.



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       ―(b) Subdivision (a) does not cause a nonprobate transfer to fail in any of the
following cases: [¶] . . .[¶] (2) There is clear and convincing evidence that the transferor
intended to preserve the nonprobate transfer to the former spouse. . . .‖
       Appellant argued the death benefit designation was a nonprobate transfer that
failed under section 5600, subdivision (a) upon termination of the domestic partnership.
Respondent maintained that the note expressing the decedent‘s continued intent that she
receive his death benefits provided such clear and convincing evidence of his intent to
preserve the nonprobate transfer of his retirement death benefit.
       Counsel for respondent argued, in addition, both at the outset of trial and in
closing argument, that section 5600 was inapplicable here, as decedent and respondent
were never married and they never entered into an equivalent domestic partnership
registered with the State of California as required by Family Code section 297,
subdivision (b).3

       3
           Family Code section 297 provides:
        ―(a) Domestic partners are two adults who have chosen to share one another‘s
lives in an intimate and committed relationship of mutual caring.
        ― (b) A domestic partnership shall be established in California when both persons
file a Declaration of Domestic Partnership with the Secretary of State pursuant to this
division, and, at the time of filing, all of the following requirements are met:
        ―(1) Neither person is married to someone else or is a member of another domestic
partnership with someone else that has not been terminated, dissolved, or adjudged a
nullity.
        ―(2) The two persons are not related by blood in a way that would prevent them
from being married to each other in this state.
        ―(3) Both persons are at least 18 years of age, except as provided in Section 297.1.
        ―(4) Either of the following:
       ―(A) Both persons are members of the same sex.
       ―(B) One or both of the persons meet the eligibility criteria under Title II of the
Social Security Act as defined in Section 402(a) of Title 42 of the United States Code for
old-age insurance benefits or Title XVI of the Social Security Act as defined in
Section 1381 of Title 42 of the United States Code for aged individuals. Notwithstanding
any other provision of this section, persons of opposite sexes may not constitute a
domestic partnership unless one or both of the persons are over 62 years of age.


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       No evidence whatsoever was presented on the question whether decedent and
respondent‘s domestic partnership was ever registered with the state pursuant to Family
Code section 297. Nor does it appear in the record whether they even qualified for state
registration as domestic partners under that statute. (See Fam. Code, § 297,
subd. (b)(4)(B) [at least one of an opposite sex couple must be over 62 years of age].)
Counsel for appellant candidly admitted that he had not briefed the issue and that he was
―not familiar with that law that requires a domestic partnership to be registered with the
California Secretary of State.‖
       Appellant contends, without citing authority, that it was respondent‘s burden to
show that section 5600 did not apply, by producing evidence that the domestic
partnership was never registered with the state. We disagree.
       At the outset of trial, the court stated that the matter was going to depend upon its
interpretation of section 5600 and whether there was clear and convincing evidence to
show the decedent‘s intent. The court also observed that it was respondent‘s burden to
show the decedent‘s intent by clear and convincing evidence. The court‘s comments
referred to the requirement of section 5600, subdivision (b)(2), that a nonprobate transfer
does not fail, despite subsequent dissolution of the marriage, where ―[t]here is clear and
convincing evidence that the transferor intended to preserve the nonprobate transfer to the
former spouse.‖ However, the trial court‘s statement does not describe the burden of
proof that applies where, as here, the court correctly determined section 5600 to be
inapplicable. Nor did it describe the standard of review under which we operate here.
       Respondent presented evidence that the deceased had named her as the primary
beneficiary of his death benefits by executing and filing the change of beneficiary form in
accordance with the City Charter. That evidence was undisputed, as was the evidence
that decedent never changed that form to remove her as his beneficiary, even when he
ended their domestic partnership. In so showing, respondent met any applicable burden.
(Evid. Code, § 500 [―Except as otherwise provided by law, a party has the burden of

      ―(5) Both persons are capable of consenting to the domestic partnership.‖ (Italics
added.)


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proof as to each fact the existence or nonexistence of which is essential to the claim for
relief or defense that he is asserting.‖].)
        As stated in the declaration the deputy director of SFERS, and in accordance with
the applicable provisions of the San Francisco Charter regarding death benefits, SFERS
was required to pay death benefits to the member‘s estate or designated beneficiary under
City Charter section A8.587-5(a).4 ―SFERS‘ longstanding practice is to pay the
designated beneficiary first pursuant to the terms of the Change of Beneficiary form
executed by the member and filed with SFERS.‖ Appellant points to nothing indicating
that a member could not designate any person, related or not, as his or her ―designated
beneficiary‖ for purposes of this provision. Decedent‘s designation of respondent as the
beneficiary of his death benefits and his failure to change that designation despite ending
their domestic partnership provides substantial evidence supporting the court‘s judgment
here.
        As the party challenging the propriety of payment of death benefits to the person
designated by the decedent on his change of beneficiary form, appellant was the party
required to show the applicability of section 5600 to void that payment. No direct
evidence was presented regarding whether the parties registered their domestic
partnership with the state. Respondent‘s testimony that she and decedent registered their
domestic partnership with the City, supports an inference that the City was the only
jurisdiction in which it was registered. In any event, respondent was not required to show
they did not register their partnership in order to defeat appellant‘s claim. That
section 5600 exists does not render it applicable here, where there was no evidence
decedent and respondent registered their partnership, as required by Family Code
section 297. Indeed, there was no evidence that they would have qualified for
registration under that statute. As section 5600 refers to the transferor‘s former spouse,


        4
         ―Regardless of cause, a death benefit shall be paid to the member‘s estate or
designated beneficiary consisting of the compensation earnable by the member during the
six months immediately preceding death, plus the member‘s contributions and interest
credited thereon.‖ (S.F. Charter, § A8.587-5(a)(1).)


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and a transfer before or during the marriage, the trial court correctly determined that
section has no applicability in the absence of a registered domestic partnership
recognized by the state. Family Code section 297.5, subdivision (a), provides:
―Registered domestic partners shall have the same rights, protections, and benefits, and
shall be subject to the same responsibilities, obligations, and duties under law, whether
they derive from statutes, administrative regulations, court rules, government policies,
common law, or any other provisions or sources of law, as are granted to and imposed
upon spouses.‖ (Italics added.) A parallel provision provides that former registered
domestic partners will be treated as former spouses. (Fam. Code, § 297.5, subd. (b).)
Had appellant produced evidence the parties had registered their domestic partnership
with the California Secretary of State in accordance with Family Code section 298,
subdivision (c), section 5600 would have applied and the court would have been required
to determine whether the fact that decedent never removed recipient as his designated
beneficiary after the ending of their domestic partnership, constitutes sufficient clear and
convincing evidence of decedent‘s intent that respondent continue as his beneficiary.
       We also observe that the equation of domestic partnerships with marriage with
respect to the City‘s retirement system under the City Charter does not result in the
incorporation of all state laws relating to married couples—nor do the City Charter or
Administrative Code purport to do so. The City Charter equates domestic partnerships
established in accordance with chapter 62 of the City Administrative Code with
marriages, such domestic partners with spouses, and termination of such domestic
partnerships under that chapter of the Administrative Code with dissolution of marriage
with respect to the retirement system. (See S.F. Admin. Code, §§ 62.1 - 62.13.) San
Francisco Charter section A8.500-2, ―Domestic Partner Qualified Survivor Benefits,‖
provides that ―[w]ith respect to the retirement system, domestic partnerships shall be
treated exactly the same as marriages, domestic partners shall be treated exactly the same
as spouses, termination of a domestic partnership shall be treated exactly the same as a
dissolution of marriage and qualified surviving domestic partners shall be treated exactly
the same as qualified surviving spouses, respectively.‖ (Italics added.) City Charter


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provisions regarding death benefits contain no provision similar to section 5600 voiding
nonprobate transfers where the parties‘ marriage (or registered domestic partnership)
fails.
         Appellant contends the court relied upon counsel‘s statement that decedent and
respondent were not registered domestic partners under state law pursuant to Family
Code section 298, and thus based its ruling on facts not in evidence. As we have
acknowledged, there was no evidence either way on the question whether the parties were
registered under state law. As appellant bore the burden of showing that section 5600
applied to the case, requiring that he must at least produce some evidence that decedent
and respondent had actually registered their domestic partnership with the California
Secretary of State, the court could find in favor of respondent that the state statute did not
apply. As a general proposition, we review the court‘s decision, not its reasons.
(Eisenberg, et al., Civil Appeals and Writs, supra, [¶] 8:214, pp. 8-147 to 8-148
[―Subject to certain exceptions . . . , an appealed judgment or order correct on any theory
will be affirmed, even though the trial court‘s reasoning may have been erroneous; i.e.,
appellate courts will not review the reasons for the trial court‘s decision. [Citations.]‖].)
         Nor does it appear that any alleged deficient ―finding‖ in the court‘s oral statement
of decision was brought to the trial court‘s attention. Where parties fail to timely bring
alleged deficiencies in a statement of decision to the trial court‘s attention, defects are
waived. (Code Civ. Proc., § 634; Eisenberg, et al., Civil Appeals and Writs, supra,
¶¶ 8:23-8:23a, p. 8-9.)
         Even were we to assume the court erred in treating the claim that the parties had
not registered their domestic partnership with the state as a matter on which evidence had
been received, rather than as a failure by appellant to present evidence on an issue upon
which he bore the burden of proof, appellant has failed utterly to establish he was
prejudiced by such failure. He makes no claim in his briefs on appeal that decedent and
respondent qualified as domestic partners under Family Code section 297. Nor does
registration as domestic partners under City ordinances have any bearing on that
question, as the City, unlike the state, has no requirement that domestic partners be either


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the same sex or have attained a certain age. Absent any showing of prejudice, reversal is
not required. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 [a miscarriage of
justice will be declared only when the appellate court, after examining the entire case,
concludes that ― ‗it is reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error.‘ ‖]; see Eisenberg, et al., Civil
Appeals and Writs, supra, ¶¶ 8:285 – 8:292, pp. 8.184 to 8.185.)
                                   II. Sanctions Request
       Respondent seeks $11,248.95 in attorney fees for the filing of a frivolous appeal.
In our order of September 6, 2012, we advised the parties that we were taking the
sanctions motion under submission to be decided with the merits of the appeal. Although
we have determined the appeal to be without merit, we do not find it was ―frivolous or
taken solely for delay.‖ (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.267(a)(1).)
As recognized by our California Supreme Court, ―any definition [of a frivolous appeal]
must be read so as to avoid a serious chilling effect on the assertion of litigants‘ rights on
appeal. 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. Counsel
should not be deterred from filing such appeals out of a fear of reprisals.‖ (In re
Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) We see no evidence that the appeal
was taken in bad faith or solely for purposes of delay. Consequently, we deny
respondent‘s sanctions request.
                                      DISPOSITION
       The judgment is affirmed. Respondent shall recover her costs on appeal.




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                                 _________________________
                                 Kline, P.J.


We concur:


_________________________
Lambden, J.


_________________________
Richman, J.




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