(1) continuous period of five years, absence from those most likely to see or hear from the absentee,

(2) diligent search reveals no information as to absentee's whereabouts, and

(3) the absence cannot be satisfactorily explained other than by death.

The proof at the hearing showed that Gregory Proper is and has been estranged from his family. His daughters informed the investigator that they had not seen or heard from him in twenty years. He had a disagreement with his mother at his father's funeral and had not been in contact with her since. The last known address of Gregory Proper was in Grass Valley, CA, and was his residence in 1996. His former neighbors and business partner had not heard from him in approximately eight years. After 1998, the record shows no evidence of an address for Gregory Proper, and no communication from him, except for one event- his father's funeral in 2001. After this one occasion he has not been in contact with family or friends. The investigator's report shows no credit activity or commercial transactions since 1996, and that Proper's military discharge papers were unable to be located.

Petitioner seeks to use the findings from this investigation as proof that the presumption of death should apply. The court, however, has a number of concerns that were not satisfactorily resolved by the hearing. First of all, the evidence at trial was almost exclusively taken from the investigator's report, a report which was dated March 1996, only four and a half years after Greg Proper's last appearance. Secondly, due to Proper's long term estrangement from his daughters (spanning back in to the mid 1980's), it is unlikely that they would be the people whom Greg Proper would be most likely to contact, if alive. Thirdly, the search itself was almost exclusively in the state of California, which is much too narrow a zone given Proper's mobility and tendencies. Lastly, the report contained potentially insidious discrepancies with trial evidence, such as the date of Greg Proper's birth and his branch of military service. All of these issues undercut petitioner's proof on the first two factual elements required by the California statute.

Petitioner's most significant hurdle, however is element No.3, the requirement that there be no other reasonable explanation for Proper's absence other than his death. California courts have taken a very hard line approach in the interpretation of this portion of the statute. In fact, in the three leading cases, People v. Niccoli, 102 Cal App2d 814 (1951), Estate of Geiger, 3 Cal. App. 4th 127 (1992), and In Re Starr, 104 Cal. App. 4th 487 (2002), there is a clear progression [*3]narrowing the interpretation of the statute.Each of these three cases involved an absentee who was convicted of a crime, and/or about to be sentenced. In each of these cases, there was evidence presented to suggest that he absentee was murdered (Niccoli), had a sudden accidental death (Geiger) or committed suicide (Starr). However in each of these cases there was also some evidence to suggest another explanation other than death- primarily that the absentee had staged a death to avoid criminal prosecution. In each of these cases, the California Appellate Court held that the presumption of death did not apply because petitioner had not met the requisite burden of proof- to show that there was no other reasonable explanation for the absence. Most recently, in the Starr case, the Appellate Court clarified this requirement with a very strict interpretation:

The question with respect to the presumption is whether the missing person's absence is capable of a satisfactory explanation other than by death, not whether death is the most satisfactory explanation for the absence." (Starr at 496, italics in original).

The Starr court acknowledged that this interpretation effectively requires the proponent of the presumption to prove a negative, ie., that the missing person's absence is "unexplained" (id at 496), but nevertheless strictly adhered to the statute. California law holds that where there is motive or a reason for the absence, the absence is not "unexplained" and thus the presumption of death will not be applied. More broadly stated, the presumption of death will not be applied where "it would be improbable that [the absentee] would be heard from even though alive". Niccoli, supra, at 819, quoting Lesser v. NY Life Ins. Co., 53 Cal App. 236, 239-240 (1921).

Here, there is no motive or reason for the disappearance of Gregory Proper. There is, however, evidence showing that Gregory Proper historically sought to live his life apart from his family, and without any contact to past friends/ neighbors/ business partners. In fact the record reveals a period of time ( c. 1998-2001) where Proper lived without credit activity or contact with family or acquaintances, only to make a solitary appearance years later at his father's funeral. This reveals that either the record is incomplete as to Proper's contacts during this time, or else Gregory Proper disappeared in 1998 only to "suddenly" resurface again in 2001, which then begs the question, is this current absence also temporary? In any event, from the evidence adduced at trial, it is clear to the court that based upon Proper's past proclivities and habits, it would be highly unlikely for his family or friends to hear from him if he is alive. Because Gregory Proper has completely disappeared in the past, remained estranged from family and friends and lived completely beneath the proverbial radar, the court is unable to issue a finding that his absence cannot be satisfactorily explained other than by death. It appears much more likely that his absence can be explained most simply and convincingly by the fact that he merely does not wish to be found. Per the Niccoli, Geiger and Starr holdings, this is not a circumstance where the presumption of death can be applied.

Accordingly, the petitioner's request for this court to apply CA §12401 to Gregory Proper's absence and further to find him deceased, is denied without prejudice. However, given that California's stated public policy behind the creation of this presumption is to "favor distributing estates and settling titles and of permitting life to proceed normally at some time prior to the [*4]expiration of the absentee's normal life expectancy" (Geiger, supra, at 134, quoting Law Revision Commission comment to Evidence Code section 605), petitioner is free to move to renew her application upon submission of additional evidence showing that it is more likely than not that there is no satisfactory explanation for Gregory Proper's absence other than his death. At a minimum, more nationally-based searching mechanisms are needed, using the correct birth date and other identifying information.

So ordered.

Dated: September 26, 2007Edmund A Calvaruso

Hon. Edmund A. Calvaruso, Surrogate