No. E064291.

Estate of FRANCISCO JAVIER OCHOA, SR., Deceased. SILVIA OCHOA, Petitioner and Respondent, v. FRANCISCO JAVIER OCHOA, JR., Objector and Appellant.

Court of Appeals of California, Fourth District, Division Two.

Attorney(s) appearing for the Case

Francisco Javier Ochoa, Jr., in pro per, and for Objector and Appellant.

Danieri Law and Mediation and T.W. Ronald Danieri for Petitioner and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



Objector and appellant Francisco Javier Ochoa, Jr., appeals from the trial court's denial of his motion to set aside the court's previous order granting his mother's spousal property petition. Representing himself, as he did below, appellant argues the trial court erred in denying his motion because he was not properly served with the petition and his mother, petitioner and respondent Sylvia Ochoa, forged his signature on a document consenting to the spousal property petition. After a hearing on appellant's motion, the court rejected appellant's claim of forgery and found he had in fact signed the consent document. Finding substantial evidence in the record to support the court's ruling, we affirm.



Appellant is the adult son of respondent Sylvia Ochoa and decedent Francisco Javier Ochoa, Sr. On February 3, 2014, using Judicial Council form DE-221, respondent filed a Spousal or Domestic Partner Property Petition (Petition) in which she requested decedent's interest in the property pass to her. Attorney T. W. Ronald Danieri represented respondent both at the hearing on the Petition and at the hearing on appellant's motion to set aside the order.

The Petition contained the required information, which included a description of the property, the names and addresses of respondent's and decedent's two adult sons, and the fact decedent died intestate. The Petition stated a hearing on the petition would occur at 8:30 a.m. on March 25, 2014 in Department T-1. Along with the Petition, respondent filed consent documents for appellant and his brother, Daniel Ochoa,1 each signed and dated January 31, 2014. The consent documents were identical except for the name and signature line. Appellant's read:

"I, FRANCISCO JAVIER OCHOA, JR, am one of the adult children of the decedent, FRANCISCO JAVIER OCHOA, SR., aka FRANCISCO J. OCHOA. "I have read the Spousal Property Petition filed by SILVIA OCHOA, and know the contents thereof. "I consent to the Spousal Property Petition and consent that the interest of the decedent in the property described in the Petition pass to the surviving spouse, SILVIA OCHOA. "I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct." (Italics added.)2

A proof of service attached to the notice of hearing on the Petition indicates appellant was served via mail on February 11, 2014 at 3427 Grant St., Corona, CA. However, appellant's address is 3437 Grant St., Corona, CA.

On March 25, 2014, the court held a hearing on the Petition, found notice had been given as required by law, and granted the Petition. Neither appellant nor his brother attended the hearing.

On February 6, 2015, appellant filed a motion to set aside the court's order. Appellant alleged respondent had "committed fraud and deceit" by not informing the court of the existence of decedent's will which "states on page five (5), that 100% of the Estate is to go to [appellant]." In a declaration attached to the motion, appellant stated he was never served with notice of the Petition. He added, "Had I been aware of a Hearing, I would have attended to present to the Court, the Notarized Will signed by my deceased father in 2002. . . ." Appellant attached to the motion a purported copy of decedent's will, dated May 3, 2002. The will leaves 100% of the property in question to appellant. Appellant and his wife were the only witnesses to the will's execution.

Appellant's declaration did not address the signed consent document or attempt to explain why he did not raise the will prior to or when he signed the consent document. Appellant also did not state when or how he learned of the court's order on the Petition.

Respondent filed an objection to appellant's motion in which she declared under penalty of perjury that appellant had come to her home on January 31, 2014 and signed the consent document. She also declared that appellant had never mentioned decedent's purported will to her and, to the best of her knowledge, decedent had never made a will. She believed the signature on the will was not decedent's.

The trial court heard appellant's motion on August 13, 2015. Because appellant did not include a reporter's transcript of the hearing in the record on appeal, our understanding of what transpired at the hearing comes from our review of the register of actions and the trial court's statement of decision. It appears appellant, his wife, respondent, and respondent's counsel, Mr. Danieri, attended the hearing. The court heard argument from appellant and Mr. Danieri and took the matter under submission.

On August 14, 2015, the court issued its statement of decision, in which it rejected appellant's claim of forgery and found appellant had signed the consent document. From the statement of decision, we glean that at the hearing appellant argued respondent had forged his signature by getting him to sign a blank piece of paper then cutting and pasting his signature to the consent document. The court rejected appellant's claim of fraud, stating:

"Based upon the objectively verifiable evidence, the Court concludes that [appellant] did sign the consent, and that this motion must be denied. The signature appears at the bottom of a completed document. Mr. Danieri represented that he prepared that document, as well as the one that was signed by Daniel Ochoa. While it would be technically possible for someone to construct the remainder of the document in such a way that the body of the document, the date line, and the signature line aligned perfectly with the signature that [appellant] admits is his, but alleges he placed a blank sheet of paper, that is highly unlikely. "Further, the consent document signed by [appellant] is the exact same as the consent signed by Daniel Ochoa, right down to the misalignment of the characters with the lined numbers. There is no evidence that Daniel claims that his signature was also placed on a blank sheet of paper, and later used to obtain this judgment. "The Court reaches the only plausible conclusion — that [appellant] signed the consent, and that he later regretted doing so, and wishes to revoke it. Unfortunately, the time for that has passed."



In the absence of a timely contest, a court may exercise its equitable jurisdiction to set aside an order in a probate proceeding in the case of fraud.3 (Estate of Sanders (1985) 40 Cal.3d 607, 614.) Here, appellant argued to the trial court his failure to contest the Petition was a result of respondent's forging his signature on the consent document. He argued he was not aware of the Petition and would have opposed it had he known respondent was requesting that decedent's interest in the property pass to her. On appeal, he contends the court's finding that he signed the consent document was erroneous because respondent did not "authenticate" the document "with expert testimony or witness [testimony]."

As an initial matter, this claim fails because appellant has not provided us with a reporter's transcript of the hearing so we do not know what argument or evidence was presented to the court. On appeal, we presume a trial court's order is correct, and we indulge all intendments and presumptions to support it on matters as to which the record is silent. It is the appellant's burden to affirmatively demonstrate reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978.)

In any event, we find substantial evidence to support the trial court's ruling in the limited record we do have. (See Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [factual findings are reviewed for substantial evidence].) As discussed, the augmented record contains a consent document, signed by appellant, that states he had read the entire contents of the Petition—which included the date, time, and place of the hearing—and agreed "that the interest of the decedent in the property described in the Petition pass to the surviving spouse." The court rejected appellant's claim respondent forged the consent document based on the following evidence: Mr. Danieri's representation that he personally prepared the document appellant signed as well as the documents appellant's brother signed; respondent's declaration that appellant had signed the document at her home on January 31, 2014; appellant's admission the signature on the document was his; and the fact appellant's brother had not claimed the document was forged or doctored.

The trial court was in the best position to judge the credibility of the parties, and it decided it believed respondent over appellant. We will not second guess that determination on appeal by reweighing the credibility of the parties on appeal.



The judgment is affirmed. Appellant to pay costs on appeal.

McKINSTER, Acting P. J. and MILLER, J., concurs.


1. Daniel Ochoa is not a party to this appeal nor was he a party to the motion to set aside judgment.
2. Appellant did not include in the appellate record the consent document he signed. We granted respondent's motion to augment the record to include it.
3. On appeal, the parties incorrectly treat appellant's motion as a motion for relief from default under Code of Civil Procedure section 473.5. In fact, there was no entry of default in this case. Appellant's motion is one appealing to the trial court's equitable jurisdiction to set aside an order based on fraud.


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