Piraheche v. County of Riverside

Filed 9/11/07 Piraheche v. County of Riverside CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Stephen D. Cunnison, Judge. Affirmed.

Robert G. Leff Associates and Robert G. Leff for Plaintiff and Appellant.

Arias & Lockwood and Christopher D. Lockwood for Defendants and Respondents.

I. INTRODUCTION

This appeal is from a judgment of dismissal after an order sustaining defendants demurrer to plaintiffs first amended complaint (FAC) without leave to amend on collateral estoppel grounds. We affirm.

The FAC purports to state four causes of action against defendants, the County of Riverside and its former public administrator, Larry Smith. The claims are based on Smiths allegedly wrongful administration of the estate of Jane Louise Nordin, who died in Sun City on November 28, 2000. Smith took control of Janes assets and administered her estate as an intestacy. Plaintiff claims, however, that Jane executed two virtually identical holographic wills, one in 1993 and one in 1996, each naming plaintiff as the executor and sole beneficiary of the estate. The gravamen of plaintiffs claims is that Smith wrongfully administered the estate to the exclusion of plaintiff and wrongfully commingled, sold, and converted personal property belonging to plaintiff together with assets of the estate.

Defendants demurred to the FAC on the grounds that each of plaintiffs claims set forth in the FAC were adjudicated in the matter of the Estate of Jane L. Nordin, Riverside County Superior Court case No. RIP079537 (the probate proceeding), and plaintiff was therefore collaterally estopped from bringing the present action. Defendants requested, and the trial court took judicial notice of, the entire court file in case No. RIP079537. In ruling on the demurrer, the court stated: The demurrers are sustained without leave to amend. They are sustained on the ground that the plaintiff is collaterally estopped by the order of the probate court of which the Court takes judicial notice.

We agree with defendants and the trial court that plaintiffs claims as alleged in the FAC were fully and finally adjudicated in the probate proceeding. A judgment was entered in that proceeding and the time for appeal from that judgment has passed. Plaintiff is collaterally estopped from relitigating the same issues in the present action.

II. FACTS AND PROCEDURAL HISTORY

A. The First Amended Complaint

The following facts are stated in the FAC and are accepted as true for purposes of the demurrer. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff began living with Jane and Janes mother in Encino in 1988. Janes mother died in 1990 and left Jane museum quality furniture and art. In 1991, Jane and plaintiff moved to Pasadena, then to Sun City where Jane eventually purchased a home.

Jane had so much art and antiques in her Sun City home that she kept much of it in her garage. With Janes permission, plaintiff stored his personal property, including music, violins, guitars, Persian rugs, and other items, in Janes garage, together with Janes property. Plaintiff continued to live with Jane in Sun City until 1998, when he returned to Iran because his parents were ill.

During the time plaintiff and Jane lived together, Jane told plaintiff she had briefly been married to Gordon Xander and had a son from the marriage named Randolph Xander (Xander). Xander was living in Orange County, and Jane had had not seen him for over 40 years. On September 22, 1990, Jane gave plaintiff a power of attorney.

On December 10, 1993, Jane executed a holographic will, witnessed by two of her friends. In the 1993 will, Jane left all of her property to plaintiff. There was a no contest clause in the will bequeathing $1 to any person contesting the will and whose name was not mentioned in it. Jane told plaintiff that her only relatives were her son and a niece and nephew, and she did not intend to leave anything to them.

After one of the witnesses to the 1993 will died, Jane mistakenly believed she had to execute a new will. She executed a virtually identical holographic will in 1996, also naming plaintiff as her sole beneficiary and executor of her estate. She gave the original of the 1996 will to plaintiff for safekeeping. Plaintiff took the original 1996 will with him when he went to Tehran in 1998. At that time, Jane agreed he would leave his music, musical instruments, and some of his other property in her Sun City home.

Plaintiff regularly spoke with Jane after 1998 and last spoke with her in September 2000. Jane died in Riverside County on November 28, 2000. Plaintiff did not learn of Janes death until mid-November 2001, when he spoke with some of Janes neighbors. Also in November 2001, plaintiff learned from Janes neighbors that Smith and his staff were moving all of Janes personal property out of her home, together with plaintiffs property.

On November 24, 2001, plaintiff faxed Smith a copy of the 1996 will. Plaintiff received a response requesting him to send the original will. Plaintiff notified Smiths office that he was planning on returning shortly with the original will. Upon his return to Riverside in December 2001, plaintiff hired Attorney Scot D. Stirling, and the original 1996 will was delivered to Smith.

Contending he was unable to locate a will, Smith petitioned to administer Janes estate as an intestacy. Smith filed the petition on January 9, 2001, several months before corresponding with plaintiff. Also on January 9, 2001, Smith selected a court-approved appraiser to value Janes home and a real estate broker to sell her home. By October 2001, all of the personal property in Janes home had been moved to a warehouse.

Plaintiff expected Smith to stop the intestate proceeding in favor of probating the 1996 will. Smith did not petition the court to probate the 1996 will. Instead, he continued to administer Janes estate as an intestacy. He sold Janes house and failed to properly account for the personal property removed from Janes house. He also failed to segregate and deliver plaintiffs personal property to plaintiff.

The FAC further alleges that Stirling filed a counterpetition to probate the 1996 will. Stirling included an allegation that plaintiff had his own personal property at Janes house. In response to Smiths objection to the counterpetition, Stirling filed declarations from Janes neighbors attesting to the personal property owned by Jane and that owned by plaintiff.

The FAC alleges on information and belief that Smith filed an inventory valuing the entire estate, including both real and personal property at $118,704.66. The inventory failed to include a line-by-line itemization of the property and its value as required by Probate Code section 8802.^[1] Plaintiff claims, [t]he only inventory covering personal property are the items that were sold in several public auctions and jewelry that was sold to a Riverside jeweler; the inventory did not itemize the personal property, showing only moneys bid for the property, without separate lists. (Capitalization omitted.)

In the first cause of action, plaintiff claims Smith wrongfully converted plaintiffs separate property by failing to segregate it from estate property. He claims the present value of his wrongfully converted separate property is $500,000.

The gravamen of the second, third, and fourth causes of action are more elusive. Under the heading Second Cause of Action, it is alleged that Stirling and the attorney for Xander, who filed a petition to determine heirship as a pretermitted heir, agreed that plaintiff and Xander would divide a small amount of cash proceeds from the public auctions and sale of jewelry. This agreement was reached outside of plaintiffs presence and without Stirling having located all of plaintiffs or Janes personal properties. The probate court then took the heirship petition off calendar, denied plaintiffs counterpetition to probate the 1996 will, and approved Smiths first and final accounting and petition for final judgment for distribution of the intestate estate. Plaintiffs attorney did not file an appeal from the judgment in the probate proceeding.

Under the heading Third Cause of Action, plaintiff claims he was excused from delivering the 1996 will to the county clerk within 30 days of Janes death as required by section 8200, because he was in Tehran and filed the will as soon as he returned to Riverside. He claims that Smith had an absolute duty to probate either the 1996 will or the 1993 will as a lost or destroyed will. And again, he claims Smith wrongfully converted his personal property.

In the Fourth Cause of Action, plaintiff alleges that Smith had fiduciary duties to the estate and Janes property needed to be itemized. Janes property was worth $3 million or more and defendant failed to safeguard and account for its reasonable value and interfered with the interests of the heirs and beneficiaries. Plaintiff has spent a great deal of money pursuing his claims. A prayer of $3.4 million is sought for Janes heirs and beneficiaries.

Although set forth in four causes of action, the plaintiff appears to be claiming: (1) Smith acted wrongfully in probating the estate as an intestate estate to the exclusion of plaintiff, and (2) Smith failed to properly inventory and/or account for the property in the estate and segregate the estate property from plaintiffs separate property, thereby wrongfully converting plaintiffs and the estates property.

On appeal, plaintiffs arguments are equally elusive. The gist of two pages of argument is that the trial court improperly ignored the principle that all allegations in the complaint are to be accepted as true, and his present claims sound in tort and were therefore not decided in the prior probate proceeding.

B. The Prior Probate Proceeding

As noted, the trial court took judicial notice of the file in the probate proceeding. The documents in the court file reveal that special letters of administration were issued to Smith on January 11, 2001; permanent letters were issued on February 22, 2001. On March 27, counsel for the decedents son, Xander, filed a request for special notice. Pursuant to court order, the real property in the estate was sold in October 2001. In November 2001, the court received a faxed letter from plaintiff.

On August 2, 2002, plaintiff filed a request for special notice and a counterpetition for probate of the 1996 will. On August 30, Smith filed objections to the counterpetition. Plaintiff filed a response to the objections in October 2002. On January 7 and 8, 2004, plaintiff filed an opposition to Smiths first and final report, and a petition for an order to award separate property to true owner.

On May 27, 2004, the various matters were heard. At the hearing, plaintiffs counterpetition for probate of will was denied. His objections to Smiths accounting were overruled, and his petition for an award of his separate property was denied. Pursuant to the agreement of the parties, the estate was divided 50-50 between plaintiff and Xander, after the payment of creditors claims and costs of administration.

III. DISCUSSION

A. Applicable Law and Standard of Review

The doctrine of collateral estoppel precludes relitigation of an issue previously adjudicated if: (1) the issue necessarily decided in the previous suit is identical to the issue sought to be relitigated; (2) there was a final judgment on the merits of the previous suit; and (3) the party against whom the plea is asserted was a party, or in privity with a party, to the previous suit. [Citation.] (Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal. 3d 903, 910; Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.)

On demurrer a court considers the allegations on the face of the complaint and any matter of which it must or may take judicial notice. [Citation.] If judicially noticed records of prior litigation show the complaint is barred by collateral estoppel, the demurrer may be sustained. [Citation.] On appeal from the judgment of dismissal following the sustaining of the demurrer without leave to amend, we review the order de novo to determine whether as a matter of law the complaint is barred by collateral estoppel. [Citation.] (Groves v. Peterson (2002) 100 Cal.App.4th 659, 667.)

In taking judicial notice of the records of a court of this state, a court may take judicial notice of the existence of each document in a court file; however, a court may not take judicial notice of matters that are reasonably subject to dispute and require formal proof. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145-147.) Stated another way, what is being noticed is the existence of the act [in the court file], not that what is asserted in the act is true. [Citation.] (Id. at p. 147.)

B. Analysis

In its broadest sense, the FAC asserts that Smith and the County of Riverside are liable to plaintiff for (1) the value of plaintiffs personal property left in Janes home at the time of Janes death, and (2) an additional portion of the value of Janes estate, over and above what plaintiff received by settlement in the probate proceeding. Notwithstanding the legal bases of these claims or whether they sound in tort, plaintiff is barred from asserting these claims in the present action because all of the issues raised in the FAC were actually litigated and determined in the probate proceeding. [E]ven though the causes of action be different, the prior determination of an issue is conclusive in a subsequent suit between the same parties as to that issue and every matter which might have been urged to sustain or defeat its determination. (Pacific Mut. Life Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 724-725, italics added.)

Plaintiff participated in the probate proceeding for 22 months. In August 2002, he filed a counterpetition to probate the 1996 will naming him executor and sole beneficiary of Janes estate. Following plaintiffs agreement to divide the estate in equal shares with decedents son, Xander, the probate court denied the counterpetition on May 27, 2004.

Plaintiff also petitioned the probate court under section 850 for an award of his separate property stored in Janes home. He claimed his separate property included, without limitation, eleven violins, eight violin bows, a Rolex watch, and two Persian rugs, and that the total value of these items exceeded $295,000. In striking this petition, the probate court said: [T]his is . . . more of a claim tort for negligent or conversion against the administrator how they handled the sale, and everything was approved previously. There were no objections at that time which is a separate basis that was raised. And, again, theres no opposition so Im going to grant the motion to strike and Im going to strike the [section] 850 petition without leave to amend.

The probate court also noted that the section 850 petition appeared to be barred by the failure to comply with the tort claims act and the government claim requirements, and based on speculation or a lack of proof. It is settled that collateral estoppel applies to claims that have previously been determined to be barred by the applicable limitations period (McClain v. Rush (1989) 216 Cal.App.3d 18, 28) or barred based on a failure of proof (Barker v. Hull (1987) 191 Cal.App.3d 221, 226). Either of these additional grounds bar plaintiffs separate property claim in the present action.

Regarding his claim that Smith failed to account for all of the personal property in Janes estate, plaintiff filed a declaration itemizing numerous things not listed and placing a value on those items in excess of $1 million. In approving the first and final account, the court overruled plaintiffs objection that not all the property was listed and that much of what was listed was undersold.

In sum, each of the issues now raised in the FAC was litigated and ruled upon in the prior probate proceeding. The probate court, in denying probate of the 1996 will, implicitly found that plaintiff was not entitled to all of the decedents estate. In striking the section 850 petition, the court determined that plaintiff did not have a viable claim for reimbursement for his alleged separate property. And, in overruling his objection relative to the first and final account, the court found that plaintiff had no basis for his assertion that the estates property was not properly accounted for. Final judgment was entered on July 13, 2004, and plaintiff did not timely appeal from that judgment. Plaintiff is collaterally estopped from again bringing these issues forward.

Lastly, plaintiff claims he was not present in court when Stirling and counsel for Xander signed the stipulation dividing the reported estate 50-50. He further asserts the stipulation was neither submitted [nor] approved. (Capitalization omitted.) He claims this was an egregious error in violation of Code of Civil Procedure section 664.6 (court may enter judgment pursuant to written stipulation signed by parties outside court or orally agreed to by parties in court). Notwithstanding the merits of this claim, it is untimely. The time to assert a claim of error based on any errors in the judgment in the probate proceeding expired no later than 180 days after July 13, 2004, the date the judgment was entered. This time period is jurisdictional. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666-667.) Nor may the probate court judgment be collaterally attacked in the present action. (Pacific Mut. Life Ins. Co. v. McConnell, supra, 44 Cal.3d at pp. 725-726 [act in excess of courts jurisdiction not subject to collateral attack in subsequent action].)

IV. DISPOSITION

The order sustaining defendants demurrer to the FAC and the ensuing judgment of dismissal are affirmed. Respondents shall recover their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Richli

J.

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