Beebe v. Sells
Filed 3/15/13 Beebe v. Sells CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
DEBORAH BEEBE, Individually and
as
Successor in Interest, etc.,
Plaintiff, Cross-defendant and
Appellant,
v.
RICHARD SELLS, Individually and
as
Trustee, etc.,
Defendant, Cross-complainant
and Respondent.
D058698
(Super. Ct. No. 37-2009-00093754-
CU-OR-CTL)
APPEAL
from a judgment of the Superior Court
of
County, Jay M. Bloom, Judge.
Affirmed.
In
this dispute between siblings, the trial court found the plaintiff lacked
standing to assert claims on behalf of her deceased mother. We agree and affirm the trial court's order
dismissing the plaintiff's claims.
FACTUAL AND PROCEDURAL BACKGROUND
1. Acquisition
of Property
Plaintiff, cross-defendant and appellant Deborah Beebe (Deborah) and her
brother, defendant, cross-complainant and respondent Richard Sells (Richard),
are the only children of Julie Sells (Julie) and Stephen Sells (Stephen). Julie and Stephen are now both deceased.
While they were
alive, Julie and Stephen made gifts of money to both Deborah and Richard, which
each child used as down payments on real property they each acquired. In each instance, one of the parents was
added to the deed by which the property was acquired as a joint tenant with the
right of survivorship. Thus, Deborah
acquired a duplex in the 1980's in Oregon
with a down payment provided by her parents, and Stephen was named in the deed
as a joint tenant. When Stephen later
died, Deborah became the sole owner.
Richard
acquired two pieces of property in a similar manner: a Lemon Grove
apartment complex and an office building on West
Redwood Street in San Diego. When Richard acquired the Lemon
Grove apartment complex, in addition to Stephen, Deborah was also
named as a joint tenant. When Stephen
died, Richard and Deborah remained on the deed as joint tenants and later, when
Richard established a formal estate plan, Deborah quitclaimed her interest in
the apartment complex to Richard.
When Richard
acquired the West Redwood Street
office building in 1997, he and Julie appeared on the grant deed as joint
tenants with a right of survivorship. In August 1998, Julie suffered a debilitating
stroke which left her unable to speak.
Because of her fairly profound disability, Richard took over management
of Julie's financial and medical affairs under the terms of a durable power of
attorney.
In 2003, on the
advice of an estate planning attorney, Richard obtained from Julie a quitclaim
deed of her interest in the West Redwood Street
property. On the same day Julie
quitclaimed her interest in the property to Richard, Richard quitclaimed his
interest in the building to his inter vivos trust.
In 2006, Julie
passed away.
2. Litigation
In August 2009,
Deborah filed a lawsuit against Richard.
Deborah alleged causes of action for financial elder abuse, conversion,
fraud, quiet title, an accounting, constructive trust, and a determination
under Probate Code section 259 that by virtue of his improper acts Richard be
deemed to have predeceased his mother.
Deborah's claims related to the Lemon Grove
apartment complex, the West Redwood Street
office building and Richard's management of Julie's financial affairs following
Julie's stroke. Richard filed a
cross-complaint in which he sought to quiet title to the Lemon Grove
and West Redwood Street
properties.
Prior to trial,
Deborah dismissed her claims related to the Lemon Grove
apartment complex. Both parties waived
their right to a jury. At trial, both
Deborah and Richard testified about their parents, their acquisition of real
estate, and their mother's condition following her stroke.
Following the
trial, the trial court issued a statement of decision in which the trial court
found that Deborah lacked standing to assert claims on her mother's behalf and
that in any event her claims lacked merit.
DISCUSSION
At the time of
trial, all of Deborah's claims against Richard were derivative claims based on
Deborah's allegations that Richard had unlawfully acquired real and personal
property which belonged to Julie. In
general, the personal representative of a decedent's estate has standing to
pursue any claims which survived the decedent's death. Code of Civil Procedure section 377.30
provides in pertinent part that an action on such surviving claims "may be
commenced by the decedent's personal representative or, if none, by the
decedent's successor in interest."
(Italics added.)
Where there is
no personal representative, Code of Civil Procedure sections 377.10 and 377.11
provide alternative standing to the successors in interest of a deceased
person. The standing provided by Code of
Civil Procedure sections 377.10 and 377.11 is limited to either
decedent's will or all of the
decedent's heirs under Probate Code sections 6401 and 6402. (Code Civ. Proc., §§ 377.10 &
377.11.)
successful in having Richard deemed to have predeceased his mother under
Probate Code section 259, she would be the sole heir and that possibility would
provide her with standing to pursue her elder abuse claims. (See Estate
of Lowrie (2004) 118 Cal.App.4th 220, 230-231.)
However, the
alternative standing provided to legatees and heirs under sections 377.10 and
377.11 is subject to the further requirement that the plaintiff file a
declaration which states either that there is no proceeding for administration
of the decedent's estate pending in California or that there is a final probate
court order distributing the cause of action to the plaintiff. (§ 377.32, subd. (a)(3), (4).) This procedural limitation on the alternative
standing provided by sections 377.10 and 377.11 is self-evidently necessary to
prevent conflicting orders and judgments as well as interference with a probate
court's administration of an estate where a decedent's estate is in fact
subject to pending probate proceedings.
The requirement is also consistent with the express terms of section
377.30, which provides standing to a decedent's legatees or heirs, but only if
the decedent has no personal representative.
Deborah did not
file a declaration meeting the requirements of section 377.32 at any point
during litigation of her claims in the trial court. While we agree with the court in
1513, 1523-1524, that the requirements of section 377.32 are in the nature of a
plea in abatement and may in theory be cured at any time (see 5 Witkin, Cal.
Procedure (5th ed. 2008) Pleading, § 1140, p. 566), because the record here
shows the trust proceeding was pending at the time of trial and thus the
possibility of conflicting determinations of Deborah's claims and interference
with administration of the trust still existed, the trial court could properly
conclude Deborah would not be able to file the declaration required by the
statute.
finding Deborah did not have standing.
DISPOSITION
The
judgment is affirmed. Richard to recover
his costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
McDONALD,
J.
IRION,
J.
name="_ftn1" title="">[1] All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
name="_ftn2" title="">[2] We note that the parties did not present any evidence in
the trial court with respect to whether any cause of action against Richard was
the property of Julie's inter vivos trust or whether the claims Deborah made
against Richard were related to trust property.
If they were, such claims were the subject not only of the requirements
of Code of Civil Procedure section 377.32, but also of the exclusive
jurisdiction of the probate court. (See
Cal.App.4th 419, 429; Prob. Code, § 17000, subd. (a) [probate court has
exclusive jurisdiction over actions and proceedings by or against creditors or
debtors of trusts and "[o]ther actions and proceedings involving trustees
and third persons"].)
