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settlementstatuteappealtrialprobatewilllease
appealtrialprobatewillcivil procedurerespondent

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Kane v. Superior Court, 37 Cal.App.4th 1577, 44 Cal.Rptr.2d 578, 95 Cal. Daily Op. Serv. 6897, 95 Daily Journal D.A.R. 11,745

Facts

William E. Kane, who died by suicide in 1991, had deposited 15 vials of his sperm at California Cryobank, Inc., authorizing their release to his live-in companion, Deborah E. Hecht. After his death, a will contest ensued between Hecht and Kane's children from a previous marriage. A settlement agreement was reached, but it did not specifically address the disposition of the sperm. Hecht filed a petition to distribute the sperm to prevent imminent injury to her ability to conceive, leading to the trial court's order for distribution.

On October 30, 1991, William E. Kane took his life in a Las Vegas hotel. He was 48 years old at the time of his death. For several years prior to his death Kane lived with real party in interest, Deborah E. Hecht.

Issue

Did the appeal from the trial court's order directing the distribution of the decedent's frozen sperm stay the enforcement of that order, and was the requirement of an undertaking as a condition of staying the order appropriate?

In this case we hold an appeal from an order made pursuant to Probate Code section 7241, subdivision (b) for the purpose of preventing injury or loss to a person or property, does not stay enforcement of the order.

Rule

An appeal from an order made pursuant to Probate Code section 7241, subdivision (b) for the purpose of preventing injury or loss does not stay enforcement of the order, and the trial court may direct the personal representative to act as if no appeal were pending.

Thus, while such an order may be appealable (Estate of Hammer (1993) 19 Cal.App.4th 1621, 1626, fn. 1, 24 Cal.Rptr.2d 190), the order must nevertheless be carried out as if no appeal were pending.

Analysis

The court determined that the trial court's order to distribute the sperm was necessary to prevent imminent injury or loss to Hecht, and thus, the appeal did not stay the enforcement of the order. The court found that the requirement for an undertaking was unnecessary because the statute allows for immediate action to prevent injury or loss, regardless of the appeal.

We need not decide whether the trial court erred in relying on Code of Civil Procedure, section 917.2 in requiring an undertaking because we conclude petitioners' appeal did not stay enforcement of the trial court's March 23, 1995, order directing the administrator to deliver the vials of Kane's sperm to Hecht to prevent injury or loss.

Conclusion

The Court of Appeal denied the petition for writ of mandate, directing the trial court to vacate its order requiring an undertaking and to enforce the distribution of the sperm to Hecht.

The petition is denied. For the reasons stated in this opinion, the respondent court is directed (1) to vacate its order of June 20, 1995, permitting a stay pending appeal upon the posting by petitioners of an undertaking; and (2) to issue an order directing the administrator to comply forthwith with the probate court's March 23, 1995, order directing delivery of three vials of decedent's frozen sperm to real party in interest in order to prevent injury or loss.

Who won?

Deborah E. Hecht prevailed in the case because the court recognized her right to receive the sperm to prevent imminent injury or loss, as supported by the trial court's findings.

Petition denied.

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