DeMartini v.
Filed 8/13/10 DeMartini v. Butler CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
KENNETH D.
DeMARTINI,
Plaintiff and Appellant,
v.
JUDITH L.
BUTLER, as Trustee, etc.,
Defendant and Respondent.
A126288
(Contra
Costa County
Super. Ct.
No. P05-01464)
Plaintiff
Kenneth D. DeMartini challenges actions taken by his sister, defendant Judith
L. Butler, as trustee of trusts holding property they inherited from their
father. Plaintiff entered into a settlement agreement with defendant
approving her initial accounts as trustee of the trusts. The settlement agreement contained a release
of claims related to the trusts, but did not preclude objections to future
accountings. Plaintiff initially objected
to defendant's subsequent and final accounts, but withdrew those objections. He then petitioned to set aside the
settlement agreement and to compel defendant to render a further
accounting. He is appealing from an
order sustaining defendant's demurrer to the petition without leave to amend.
The
principal issue is the extent to which plaintiff's claims are barred under the
doctrine of res judicata by an order that was entered approving defendant's
final accounts after plaintiff withdrew his objections to them. We conclude that plaintiff is collaterally
estopped by the order from asserting all of the claims he seeks to raise in the
petition, except those relating to certain parcels of real property he did not
learn of until after the order was entered.
We note further that claims relating to those properties may not
necessarily be precluded by the release of claims in the settlement agreement,
and that plaintiff should be granted leave to amend to plead those claims with
particularity. We therefore affirm in
part and reverse in part the order sustaining the demurrer without leave to
amend.
I. BACKGROUND[1]
The
parties were named by their parents as beneficiaries under the Andrew DeMartini
and Eva DeMartini Living Trust, dated February
16, 1998 (the Trust). The
Trust provided that upon the death of the first settlor, assets would be
divided into a Survivor's Trust as to the survivor's share, and into a Marital
Deduction Trust and a Tax Savings Trust as to the decedent's share. Andrew died on March 18, 1998. On August 10, 1998, Eva, as settlor
and trustee, executed a first amendment to the Trust naming defendant as the
sole successor trustee of any trust created by the agreement. Eva executed a second amendment to the Trust
on September 4, 1998, and a
third amendment to the Trust on July 8,
1999. The third amendment
cancelled the second amendment, disinherited plaintiff from Eva's Survivor's
Trust, and named defendant the sole beneficiary of that trust. On January
10, 2001, Eva executed a declaration allocating one-half of the
Trust's assets to her Survivor's Trust, and dividing the other half among the
Marital Deduction Trust, which was split into the Andrew DeMartini Exempt
Marital Trust and the Andrew DeMartini Nonexempt Marital Trust, and the Andrew
DeMartini Tax Saving Trust (collectively the Andrew DeMartini Trusts).
Eva
was diagnosed with Alzheimer's dementia in March 2002. Her physician determined on July 1, 2002, that she was unable to
handle her financial affairs without defendant's assistance, and defendant as
of that date acted as successor trustee of the Andrew DeMartini Trusts. Defendant rendered accounts to plaintiff for
the periods July 1, 2002 through December
31, 2002 (first account), January 1, 2003 through June 30, 2003 (second account),
and July 1, 2003 through December 31, 2003 (third
account). Plaintiff retained counsel and
objected to those accounts. The
objections were resolved in a settlement agreement between: defendant, individually and as trustee of the
Andrew DeMartini Trusts; Eva, individually and as trustee of those trusts; and
plaintiff.
The
agreement recited that plaintiff contested the validity of the first amendment to the Trust naming
defendant as sole successor trustee, and that he claimed a trustee fee, which
defendant disputed. The agreement
provided that The Mechanics Bank would be appointed as successor trustee of the
Andrew DeMartini Trusts, and that defendant would transfer the assets of those
trusts to the bank. The agreement
specified defendant's trustee's fee, and provided that plaintiff would receive
an equal amount, less the amount he owed on a loan from the Andrew DeMartini
Tax Savings Trust. Plaintiff agreed in
the settlement â€
| Description | Plaintiff Kenneth D. DeMartini challenges actions taken by his sister, defendant Judith L. Butler, as trustee of trusts holding property they inherited from their father. Plaintiff entered into a settlement agreement with defendant approving her initial accounts as trustee of the trusts. The settlement agreement contained a release of claims related to the trusts, but did not preclude objections to future accountings. Plaintiff initially objected to defendant's subsequent and final accounts, but withdrew those objections. He then petitioned to set aside the settlement agreement and to compel defendant to render a further accounting. He is appealing from an order sustaining defendant's demurrer to the petition without leave to amend. |
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