Filed 12/1/15 Safina v. Sorensen CA2/6

               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule 8.1115(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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

                                  SECOND APPELLATE DISTRICT

                                                DIVISION SIX


WILLIAM SAFINA,                                                                 2d Civil No. B259237
                                                                              (Super. Ct. No. 1403000)
     Plaintiff and Appellant,                                                  (Santa Barbara County)

v.

LAWRENCE T. SORENSEN, as Trustee,
etc.,

     Defendant and Respondent;

GERALDINE FREEMAN,

     Real Party in Interest and Respondent.



                   Michael Safina died. At the time of his death he was in a 48-year
relationship with Geraldine Freeman whom he considered his wife in all but name.
Two years after his burial, his surviving brother, William Safina,1 placed a
headstone on the grave bearing the inscription "BELOVED BROTHER." Freeman
had requested the inscription "OUR BELOVED MIKE." Unable to obtain an
agreement on the inscription, Lawrence T. Sorensen, the trustee of Michael's trust,
proposed that the headstone simply bear Michael's name along with the dates of his

1
 To avoid confusion, we shall refer to Michael Safina and his siblings by their first
names.
birth and death. William, with whom Michael and Freeman had a contentious
relationship, refused. Sorensen petitioned for an instruction to allow the
modification. William objected, contending that Health and Safety Code section
71002 controlled and gave him the power to make the decision. We affirm the trial
court's order granting Sorensen's request.
                    FACTS AND PROCEDURAL BACKGROUND
                 Michael died on April 4, 2012. At that time, he had three living
siblings, William, Abraham Safina and Bertha Berston. He had no surviving
spouse, children or parents.
                 Prior to his death, Michael amended his trust to disinherit William and
Abraham and to name Freeman as the sole remainder beneficiary. William and
Abraham filed a trust contest action to invalidate the amendment, among other
things. That petition is pending along with four other actions involving Michael's
estate. Sorensen is the temporary trustee of Michael's trust and the special executor
of his estate.
                 Michael was interred at Santa Barbara Cemetery. Consistent with
Jewish custom, William and Abraham planned to place a headstone on Michael's
grave a year after his death. They proposed to include the inscription "Our Beloved
Brother," but Freeman wanted "Our Beloved Mike." Before an accord could be
reached, Abraham died.
                 Nearly two years after Michael's death, Sorensen sent an email to
William's counsel, with Freeman's approval, proposing that they erect a headstone
simply bearing Michael's name and the dates of birth and death. The next day,
William unilaterally placed a headstone on the grave that included that information
plus the inscription "BELOVED BROTHER" and a Masonic symbol. According to
William, all three brothers were freemasons. Freeman, who visits the grave daily,
objected to the stone. She claimed the inscription is an affront to her long-term


2
    All statutory references are to the Health & Safety Code unless otherwise stated.
                                             2
relationship with Michael, infringes on her rights as holder of his health care power
of attorney and is contrary to the brothers' actual relationship.
                Sorensen again proposed to place "neutral" wording on the headstone,
with the cost to be absorbed by the trust. William refused. He stated Abraham had
wanted the "BELOVED BROTHER" language and he was honoring that request.
To resolve the impasse, Sorensen petitioned the probate court for an instruction
allowing him as trustee to modify the headstone to delete the inscription and
Masonic symbol.3 Freeman joined in the petition.
                The parties disputed who had the right to dictate the content of the
headstone. William claimed the right under section 7100 as Michael's surviving
brother. Freeman claimed a higher priority right as the agent under a power of
attorney Michael had signed related to his health care. William maintained that the
inscription was made at Abraham's request. The probate court found that it was not
"Abe's interests that would be the controlling interest here. It would be Michael.
And all evidence is that Michael was somewhat at odds with his brothers at the time
he passed away." The court ordered that "[t]he headstone . . . be changed to the
headstone proposed by Mr. Sorensen. Michael Safina's Trust shall pay the cost."
                William moved to vacate the probate court's order. He argued that
Freeman's power of attorney for health care was invalid because it was not
notarized or witnessed and that only he, as the "'sole surviving competent adult
sibling of decedent,'" had statutory authority to direct the content of Michael's
headstone. (See § 7100, subd. (a)(5).) The court declined to change its ruling.
Agreeing with Freeman's analysis, the court noted "this sort of situation is so
unfortunate, and I believe it's the kind of situation that calls out for an equitable
solution, and I think that's what I've done." William appeals.




3
    Photographs of the current and proposed headstones are attached as Appendix A.
                                            3
                                    DISCUSSION
                                  Standard of Review
              An order on a petition for instructions is reviewed for an abuse of
discretion. (Estate of Denton (1971) 17 Cal.App.3d 1070, 1075.) "The trial court's
exercise of that discretion will be upheld if it is based on a reasoned judgment and
complies with legal principles and policies appropriate to the case before the court.
[Citation.] A reviewing court may not disturb the exercise of discretion by a trial
court in the absence of a clear abuse thereof appearing in the record. [Citation.]
The burden rests on the complaining party to demonstrate from the record that such
an abuse has occurred. [Citation.]" (Forthmann v. Boyer (2002) 97 Cal.App.4th
977, 984-985.)
                             Application of Section 7100
              Section 7100 "establishes . . . an orderly process by which to ensure
that proper disposition is made of human remains." (Christensen v. Superior Court
(1991) 54 Cal.3d 868, 896-897.) The statute, which is strictly construed, sets forth
a hierarchy, in descending order, of nine categories of persons authorized to control
the disposition of the remains. (§ 7100; Benbough Mortuary v. Barney (1961) 196
Cal.App.2d.Supp. 861, 865.) The first and highest category is the holder of a power
of attorney for health care. (§ 7100, subd. (a)(1).) This category is inapplicable
here because Freeman's power of attorney for Michael's health care was not
notarized or witnessed in accordance with the Probate Code. (See Prob. Code,
§ 4673, subd. (a)(3).) The second, third and fourth categories also are inapplicable.
The fifth category, and the one relied upon by William, is "[t]he sole surviving
competent adult sibling of the decedent or, if there is more than one surviving
competent adult sibling of the decedent, the majority of the surviving competent
adult siblings." (§ 7100, subd. (a)(5).) That provision further states that "less than
the majority of the surviving competent adult siblings shall be vested with the rights
and duties of this section if they have used reasonable efforts to notify all other
surviving competent adult siblings of their instructions and are not aware of any

                                           4
opposition to those instructions by the majority of all surviving competent adult
siblings." (Ibid.)
              William contends that he, and only he, had the statutory authority to
decide the content of Michael's headstone. The flaw in his argument is that he is
not, as he originally claimed, "[t]he sole surviving competent adult sibling of the
decedent." (§ 7100, subd. (a)(5).) As stated in Sorensen's petition, there were three
surviving siblings at the time of Michael's of death. By the time William
commissioned the headstone, Abraham had died and there were two surviving
siblings – William and Bertha. Section 7100, subdivision (a)(5) states that where,
as here, there is more than one surviving competent adult sibling, the majority of the
surviving competent siblings must agree on the disposition of the remains, which
includes "the location and conditions of interment, arrangements for funeral goods
and services to be provided." (Id., subd. (a).) Assuming this language encompasses
the selection of a headstone two years after the decedent's burial, nothing in the
record relating to the petition suggests William obtained Bertha's agreement to the
inscription or that he "used reasonable efforts to notify" her of his intention, as
required by section 7100, subdivision (a)(5).
              Indeed, after William moved to vacate the probate court's order,
Bertha submitted a declaration stating that she had "received a copy of the Trustee's
Motion for Instructions Regarding the Headstone to place neutral language on my
brother, Mike Safina's headstone, which I understand was granted by the Court, and
which I fully support." (Italics added.) William objected to the declaration as
untimely, but he can hardly complain about a declaration that was filed in direct
response to his assertion that he is "'sole surviving competent adult sibling of
decedent.'" Not only does the declaration refute that statement, but it also supports
the probate court's implied finding that there was no agreement by a majority of the
surviving siblings to erect the current headstone. Thus, on the record presented,
William has not shown that his decision to choose the content of the headstone was
authorized under section 7100, subdivision (a)(5).

                                           5
              Further, it is not clear that section 7100 applies to the facts of this
case. The decision to commission the headstone was made almost two years after
Michael was interred. Section 7100, subdivision (a) states that disposition of the
remains includes "the location and conditions of interment, and arrangements for
funeral goods and services to be provided . . . ." William cites no authority
suggesting that erecting a headstone a significant period of time after the decedent's
burial is part of a condition of interment or an arrangement for funeral goods. In
fact, in his response to Sorensen's petition, William asserted just the opposite. He
opined that even if Freeman's health care power of attorney was valid, her argument
that "[s]ection 7100 give[s] its holder authority over the headstone inscription at
this late date requires stretching the meaning of the statute far beyond its plain
words. . . . Disposition of the remains of a deceased person can only mean deciding
how that person should be buried. Here, [Michael] was buried over two years ago
. . . ." (See, e.g., Maffei v. Woodland Memorial Park (2005) 130 Cal.App.4th 119,
129 [section 7100 establishes precedence in determining initial disposition of
remains].)
              In the absence of clear governing authority on the issue, Sorensen
appropriately petitioned the probate court for an instruction regarding the
headstone's content. The probate court, as a court of general jurisdiction, enjoys
"broad equitable powers" to decide such matters. (Estate of Kraus (2010) 184
Cal.App.4th 103, 114 ["The probate court may apply general equitable principles in
fashioning remedies and granting relief"]; see In re Malgor's Estate (1947) 77
Cal.App.2d 535, 536-538; In re Seymour (1911) 15 Cal.App. 287, 293-294
[executors petitioned for instructions to purchase decedent's final resting place].)
Here, the court was faced with a disagreement between Michael's long-time
companion, who is the beneficiary of his trust, and his remaining brother, with
whom he had a troubled relationship. Sorensen proposed, as a reasonable
compromise, that the headstone be modified at trust expense to delete the contested
inscription and symbol. The remaining content is "neutral," favoring neither party,

                                            6
and was endorsed not only by Freeman, but also by Michael's other remaining
sibling. William has not shown that the court's adoption of this compromise was
arbitrary or unreasonable under the circumstances.
                                  DISPOSITION
             The judgment (order granting trustee's petition for instructions) is
affirmed. Respondent Freeman shall recover her costs on appeal.
             NOT TO BE PUBLISHED.




                                         PERREN, J.


We concur:



             GILBERT, P. J.



             YEGAN, J.




                                         7
APPENDIX A
                             Colleen K. Sterne, Judge

                      Superior Court County of Santa Barbara
                       ______________________________

              Allen & Kimbell, LLP, John H. Parke, James M. Sweeney for
Plaintiff and Appellant.
              No appearance for Defendant and Respondent Lawrence T. Sorensen.
              James P. Ballantine for Real Party in Interest and Respondent
Geraldine L. Freeman.
