Estate of Asberry - Probate Court Erred, Remanded

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March 26, 2026 Get Citation Alerts Download PDF Add Note

Estate of Asberry CA2/2

California Court of Appeal

• Citations: None known
• Docket Number: B340735

• Precedential Status: Non-Precedential

• Opinion

• Authorities (4)

• Cited By (0)

• Summaries (0)

• Similar Cases (226)

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Combined Opinion

Filed 3/26/26 Estate of Asberry CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

In re Estate of LEO ASBERRY, Deceased. B340735

(Los Angeles County
LEO ASBERRY, JR., Super. Ct. No.
22STPB06360)
Petitioner and Appellant,

v.

DARRELL ASBERRY,

Real Party in Interest and Respondent.

APPEAL from an order of the Superior Court of
Los Angeles County. Jonathan L. Rosenbloom, Judge. Reversed
and remanded with directions.

The DLJ Law Firm and Dorian L. Jackson for Petitioner
and Appellant.
No appearance for Real Party in Interest and Respondent.

Courts decide cases by rendering judgements based on
statutes and case law. On occasion a literal application of the
facts and law squander judicial resources resulting in an
unnecessary appeal. In such cases, courts are required to use
judgment in the common use of that term. Here, both the law
and common sense rendered this appeal unnecessary.
Petitioner and appellant Leo Asberry, Jr., appeals from the
denial of his petition to discharge him as the executor of his late
father’s estate and to terminate probate proceedings (the
discharge petition). (Prob. Code, § 12251, subd. (a).)1 There was
“no property of any kind belonging to the estate and subject to
administration” when the discharge petition was filed. (Ibid.)
Appellant was entitled to discharge and termination. (Ibid.) We
reverse and remand. The probate court shall enter an order
granting appellant’s discharge petition.
Appellant also contends that the probate court violated the
California Public Records Act (Gov. Code, § 7920.000 et seq.)
(CPRA) by failing to “retain and maintain probate notes as part
of the permanent court file.”2 We do not consider this argument,
as appellant has no standing under the CPRA.

1 All further statutory references are to the Probate Code
unless otherwise indicated.

2 Probate notes are notices sent to parties in probate matters
to “inform[] the[m] . . . of additional documents that are

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BACKGROUND
Leo Asberry, Sr. (decedent), executed a will devising all of
his property to The Leo Asberry Living Trust (the trust).
Appellant was named executor of the estate and, upon decedent’s
death, trustee of the trust. Appellant and Darrell Asberry
(Darrell), decedent’s grandson, are the sole beneficiaries of the
trust.3
Decedent died in April 2021.
In April 2022, appellant filed a petition to transfer funds
held in two retirement accounts to the trust (Heggstad petition).
(See § 850; Estate of Heggstad (1993) 16 Cal.App.4th 943.)
Decedent’s former employer, which held the funds, intervened.
The employer argued that the Employee Retirement Income
Security Act of 1974 (29 U.S.C. §§ 1001 et seq.) required the
funds be transferred to decedent’s estate, not the trust.
Appellant petitioned to open probate “only because . . .
federal preemption requires [it] for [retirement] accounts.” The
probate court granted the petition, and the estate received the
funds sometime in May 2023. Appellant filed an amended
Heggstad petition, which was granted in December 2023.
In March 2024, appellant filed the discharge petition
(§ 12251, subd. (a)), averring that probate should be terminated
because “[t]here is no property of any kind belonging to the
[e]state and subject to administration[.]”
At a hearing, the probate court found that there was no
property belonging to the estate, as the retirement funds had

necessary to support judicial consideration of [a] petition.”
(Super. Ct. L.A. County, Local Rules, rule 4.4(b).)
3 Because the parties share a last name, we refer to Darrell
by his first name for clarity. No disrespect is intended.

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been transferred to the trust by the amended Heggstad petition.
Because the funds were “at one point . . . in the estate” and had
never been inventoried, however, the court advised appellant that
it would not close the estate until he filed an accounting (or
waiver) and final distribution report.
The probate court emphasized that this paperwork would
not be onerous to prepare, explaining that “even if [appellant]
filed the most skeletal accounting saying the money was received
and the money was then distributed by means of a Heggstad
[petition], that . . . would address everyone’s concerns.” The court
later said that a “waiver of account” would suffice, and that the
final distribution “report . . . . can be very, very brief.”
Appellant agreed to file a waiver of accounting, but refused
to file a report. Accordingly, the probate court denied the
petition.
Appellant timely appealed, naming Darrell as respondent.
However, Darrell did not appear in this matter; his counsel
informed this court that Darrell “is not a ‘respondent’” and “joins
in [appellant’s] arguments.”
DISCUSSION
I. Discharge Petition
On appeal, appellant contends that the probate court
exceeded its statutory authority in denying his discharge
petition, a question of law which we review de novo.
(Guardianship of Saul H. (2022) 13 Cal.5th 827, 847.) We agree
with appellant, though not for the reasons argued at length in his
uncontested opening brief.
The statute authorizing the discharge petition provides
that “[a]t any time after appointment of a personal representative
. . . , if it appears there is no property of any kind belonging to the

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estate and subject to administration, the personal representative
may petition for the termination of further proceedings and for
discharge of the personal representative.” (§ 12251, subd. (a).)
“If it appears to the satisfaction of the [probate] court on the
hearing that the facts stated in the petition are true, the court
shall make an order terminating the proceeding and discharging
the personal representative.” (§ 12251, subd. (c).)
Here, the probate court acknowledged that, by the time the
discharge petition was filed, the only property ever deposited in
the estate and subject to probate administration (i.e. the
retirement funds) had been transferred to the trust. Under the
plain language of section 12251, that factual finding entitles
appellant to an order granting the discharge petition. (§ 12251,
subd. (c) [“If it appears to the [court’s] satisfaction . . . that the
facts stated in the petition are true, the court shall make an
order terminating the proceeding and discharging the personal
representative.” (Italics added.)]; see also § 12 [“‘Shall’ is
mandatory[.]”].)
Arguably, property may remain “subject to [probate]
administration” (§ 12251, subd. (a)) even if it is no longer in the
estate. Analogous case law raises the possibility that estate
property may require administration after disposal. (Cf. Estate of
Heigho (1960) 186 Cal.App.2d 360, 368 after proceedings are
terminated, probate may be reopened if “‘there still remains
property of the estate not fully disposed of, or some act to be done
relating thereto which only an administrator can do.’”.)
But we are unconvinced that the paperwork ordered by the
probate court is required in this case. “The law neither does nor
requires idle acts.” (Civ. Code, § 3532.) Appellant’s uncontested

5
discharge petition established that all estate assets had been
received and transferred to the trust via a Heggstad petition.
Absent any indication of impropriety or irregularity, a waiver of
accounting and “skeletal” or “very, very brief” report reiterating
the same facts set forth in the discharge petition would serve no
purpose.
On this record, we conclude that the probate court erred in
denying appellant’s discharge petition. Our conclusion renders
all but one of appellant’s remaining arguments moot.
II. CPRA Claims
Appellant contends that the probate court violated the
CPRA by failing to maintain records of the probate notes in this
case. He requests an “[o]rder that the probate division of the
Superior Court be mandated to retain and maintain probate
notes as part of the permanent court file for all proceedings[.]”
But appellant neither “allege[s] [n]or establish[es] [his] standing”
to pursue such relief. (Mendoza v. JPMorgan Chase Bank, N.A.
(2016) 6 Cal.App.5th 802, 810.)
Generally, an individual cannot enforce regulatory statutes
unless they provide a private right of action. (Animal Legal
Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 144–147.)
The CPRA contains a private right of action, but its scope is
limited. (Gov. Code, § 7923.000 [“Any person” may “institute a
proceeding . . . to enforce that person’s right . . . to inspect or
receive a copy of any public record or class of public records.”].)
This remedy is “‘available only to a person . . . seeking disclosure
of public records and only where the public entity is allegedly
improperly withholding those records. [Citations.] The CPRA
provides no judicial remedy for any other person . . . or a remedy
that may be utilized for any purpose other than to determine

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whether a particular record or class of records must be disclosed.’
[Citation.]” (Di Lauro v. City of Burbank (2025) 110 Cal.App.5th
969, 981 (Di Lauro) (italics in original).) Moreover, the CPRA
establishes specific procedures for individuals seeking to enforce
the statute. (Gov. Code, § 7923.100 [“Whenever it is made to
appear, by verified petition to the superior court . . . that . . .
public records are being improperly withheld from a member of
the public, the court shall order the . . . person charged with
withholding the records to disclose th[em] or show cause why that
person should not do so.”].)
Appellant does not seek disclosure of public records; he
requests injunctive relief that goes far beyond “‘determin[ing]
whether a particular record or class of records must be disclosed’”
(Di Lauro, supra, 110 Cal.App.5th at p. 981); and he purports to
tack his CPRA claims onto this appeal, rather than raising them
via verified petition. Appellant’s claims fall wholly outside the
scope of the CPRA’s limited private right of action. He lacks
standing to pursue his CPRA arguments.
DISPOSITION
The order is reversed and the matter is remanded. The
probate court is directed to enter an order granting appellant’s
discharge petition pursuant to section 12251, subdivisions (a) and
(c). Appellant shall bear his costs on appeal; who else should pay
them?

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.
GILBERT*
We concur:

________________________, P. J.
LUI

________________________, J.
CHAVEZ

• Retired Presiding Justice of the Court of Appeal, Second

Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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