California Court of Appeal Nov 14, 2013 No. D062276Unpublished
Filed 11/14/13 Estate of Richardson CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
Estate of JOHN RICHARDSON, Deceased. D062276 DONNA TOBEY,
Petitioner and Respondent, (Super. Ct. No. P182652)
v.
DIANE STRETTON,
Objector and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Julia C.
Kelety, Judge. Affirmed.
Diane Stretton, in pro. per., for Objector and Appellant.
The Krupa Law Group and Lori L. Krupa for Petitioner and Respondent.
Diane Stretton appeals from a probate court order denying her motion to disqualify
a probate court judge (Code Civ. Proc., § 170.6), and rejecting her objections to a status
report on the administration of her father's estate.1 We affirm.
SUMMARY OF RELEVANT FACTS AND PROCEDURE
Background
John Richardson (Father) died more than 11 years ago. At the time of his death,
he was involved in divorce proceedings with his wife (Mother) after they had been
married for about 56 years. Mother died in 2003. Because this appeal concerns only
Father's estate, we omit references to Mother and her estate except where relevant to the
Father and Mother left three adult daughters: Stretton, Donna Tobey, and Sharon
Freeburn. In his will, Father named Tobey as executor, identified Tobey and Freeburn as
the sole beneficiaries, and specifically and expressly omitted Stretton as a beneficiary.
Before his death, Father had revoked a trust that had designated Stretton as a beneficiary.
Although Stretton challenged the will and trust revocation, Stretton was unsuccessful in
those challenges. Thereafter, Stretton had no legal basis to seek any benefits under
Father's estate or trust.
Six years after Father's death, in February 2006, Stretton was declared a vexatious
litigant based, in part, on her numerous unsuccessful filings in Mother's and Father's
1 Statutory references are to the Code of Civil Procedure unless otherwise specified. 2
estate proceedings. Stretton was required to obtain permission from the superior court
presiding judge before filing new litigation in the probate proceedings.
One focus of Stretton's prior unsuccessful litigation efforts was a deed of trust held
by Father and Mother encumbering Stretton's real property in Lake Forest, California,
referred to as the "Sleepy Hollow" property. The deed of trust on the Sleepy Hollow
property secured a loan of approximately $256,000 from Father and Mother to Stretton.
In prior proceedings, Stretton claimed the deed of trust was invalid for numerous reasons,
including that there was no underlying promissory note and the deed of trust was merely
a vehicle to ensure Stretton's former husband did not obtain rights to the property.
However, in a 2006 final judgment resolving a claim brought by Stretton against Father's
and Mother's estates, the court (Judge Lisa Guy-Schall) rejected these arguments, and
made an express finding that the parents' deed of trust on the Sleepy Hollow property was
valid and reflected security for unpaid loans from Father and Mother to Stretton.
Thereafter, the probate court confirmed that the Sleepy Hollow property should be
sold. Based on an appeal filed by Stretton relating to Father's trust revocation, the
probate court initially issued an order staying the sale. However, the probate court
ultimately lifted this stay after it determined the sale was unrelated to Stretton's challenge
to the trust revocation. Before this sale order was executed, in March 2010, the Orange
County tax assessor's office held a nonjudicial foreclosure sale of the Sleepy Hollow
property (based on a failure to pay owed taxes) and sold the property at an auction for
approximately $382,800.
3
Motion at Issue in this Appeal
In August 2011, executor Tobey filed a second report on the status of the estate
administration and a request for orders continuing the administration and for certain
distributions and fees for the executor and her attorney (August 2011 petition). Tobey
and her attorney filed supporting declarations and memoranda discussing the status of the
estate. In these papers, Tobey noted that Father's estate is insolvent and the estate owes
her money for amounts she personally paid for fees charged to the estate. Tobey also
indicated that neither she nor her attorney has been paid for their services. Tobey
additionally discussed the financial burden to the estate from Stretton's litigation and
from malpractice by a prior estate attorney.
With respect to the Sleepy Hollow property, Tobey informed the court of the
nonjudicial foreclosure sale and that she has a pending claim in Orange County for the
estate's share of the net sales proceeds. Tobey stated that Stretton had filed a lawsuit
contesting the foreclosure sale in Orange County, but the lawsuit was dismissed. In a
supplement filed two months later, Stretton stated that a payment from the "County of
Orange in the amount of $173,323.65 was received in early September and is on deposit
[with Tobey's counsel's law firm]."
In response to Tobey's August 2011 petition, Stretton moved to disqualify Judge
Julia Kelety, who had recently been assigned to preside over Father's estate.2 (§ 170.6.)
2 During the previous 10 years, numerous superior court judges had ruled on various aspects of the probate and estate litigation, including Judge Lisa Guy-Schall, Judge Thomas LaVoy, Judge Linda Quinn, and Judge Gerald Jessop. 4
Stretton also filed an objection to the "appraisal" relating to the Sleepy Hollow property,
essentially challenging the fact that the Sleepy Hollow property was included in Father's
estate. In support, Stretton raised numerous arguments, including that Father's deed of
trust on the property was void and Father's estate was collaterally estopped from claiming
an interest in the Sleepy Hollow property based on a family court order involving the
dissolution between Mother and Father.
On December 6, 2011, Judge Kelety held a hearing at which Stretton and Tobey's
counsel appeared. Later that day, the court issued an order denying Stretton's
disqualification motion, finding that Stretton had no standing to bring the motion. The
court stated: "By its terms, only a party may bring a 170.6 motion. Ms. Stretton,
however, has been adjudged not to have any standing with respect to the administration
of this Estate. . . . These rulings are the law of the case in this matter. Ms. Stretton, as
obligor on a Deed of Trust owned by the Estate, is at best a debtor of the estate. She
lacks standing to challenge the estate's administration and is therefore not a party to these
proceedings." The court also issued a minute order approving Tobey's status report and
preliminary distribution requests. In this ruling, the court did not specifically address or
refer to the Sleepy Hollow property, but the court stated that Tobey was authorized to use
any additional funds received by the estate to pay herself for amounts owed to her by the
estate.
On appeal, Stretton challenges these December 6, 2011 rulings.
5
DISCUSSION
I. Disqualification Motion
Stretton contends the court erred in denying her section 170.6 peremptory
challenge.3
Section 170.6 prohibits a judicial officer from acting in "a civil or criminal action
or special proceeding" if a statutory affidavit of prejudice is filed by "[a] party to, or an
attorney appearing in, [the] action or proceeding . . . ." (§ 170.6, subd. (a)(1), (2).)
Under this code section, only a "party" to the proceeding or the party's attorney may file a
section 170.6 challenge. (§ 170.6, subd. (a)(2); Avelar v. Superior Court (1992) 7
Cal.App.4th 1270, 1274.)
In estate proceedings, whether an individual is a party depends on whether he or
she is an "interested person" with respect to the particular proceeding. (Estate of Davis
various parties who may qualify as an "interested person," but limits these definitions to
an individual having a property right in, or claim against, an estate that may be affected
by the probate proceeding. (Lickter v. Lickter (2010) 189 Cal.App.4th 712, 728; see Ross
& Cohen, Cal. Practice Guide: Probate (The Rutter Group 2013) ¶ 3:84.1, p. 3-32.)
3 Generally, a writ petition is the exclusive means for obtaining review of an unsuccessful peremptory challenge. (§ 170.3, subd. (d).) However, we consider this claim on appeal because Stretton filed an application under the vexatious litigant statute seeking to file a writ petition, but the acting presiding justice denied the application. Because our examination of the record shows the lower court did not treat the disqualification petition as subject to the vexatious litigant prefiling requirement, we shall review the orders denying the disqualification petition on its merits. 6
Under this statutory definition, an heir is not an "interested party" if a court has
previously determined the heir is not a beneficiary under the estate documents. (See
Lickter, supra, at pp. 732-733; Estate of Powers (1979) 91 Cal.App.3d 715, 719-722.)
The probate court did not err in concluding Stretton was not a party to the
proceeding on Tobey's August 2011 petition. Although Stretton was an "heir at law," she
had been expressly disinherited under Father's will. Thus, Stretton was not a beneficiary
who had standing to object to a status report or a preliminary distribution request. (See
170.6 disqualification petition on the ground that Stretton was not an interested party in
the proceedings.
Stretton argues that she was an interested party because she was a former owner of
the Sleepy Hollow property and was challenging the estate's claim to this property.
However, the issue of the ownership of the property was not before the court on Tobey's
August 2011 petition. Tobey's August 2011 petition did not request the court to make
any order pertaining to that claim, and sought only an order for distribution of those funds
after they had been paid to the estate by a governmental agency. Because Stretton was
not a beneficiary or creditor of Father's estate, she had no interest in the manner in which
the funds were distributed once they were paid to the estate.
Additionally, the issue of Tobey's right to enforce the deed of trust had already
been adjudicated in prior probate proceedings. In 2006, the superior court issued a final
judgment stating that Father's deed of trust on the Sleepy Hollow property was valid and
enforceable. Thereafter, the probate court ordered the Sleepy Hollow property sold and,
7
in an unrelated action, the property was sold in a nonjudicial foreclosure sale held by
Orange County for an unpaid tax lien. A party has no standing to object to a petition
seeking preliminary distributions for the purpose of relitigating issues that were already
decided by final orders. (See Estate of Gump (1940) 16 Cal.2d 535, 549.)
We also reject Stretton's contention that Tobey waived her right to object to
Stretton's participation in the proceedings because Stretton had previously participated in
probate hearings involving Father's estate. The fact that Stretton may have been an
interested party in prior proceedings when she had a direct interest in the outcome (for
example, where she claimed that Father had not revoked his earlier trust) does not mean
she had a continuing interest. (See Prob. Code, § 48, subd. (b) ["meaning of 'interested
person' as it relates to particular persons may vary from time to time and shall be
determined according to the particular purposes of, and matter involved in, any
proceeding"]; Estate of Davis, supra, 219 Cal.App.3d at p. 668 ["a party may qualify as
an interested person entitled to participate for purposes of one proceeding but not for
another"]; see also Arman v. Bank of America (1999) 74 Cal.App.4th 697, 702-703.) By
the time of Tobey's August 2011 petition, it had been finally determined that Stretton was
not a beneficiary under any estate document and had no standing as a creditor under any
possible theory.
II. Stretton's Challenges to the Nonjudicial Foreclosure Sale and to the Deed of Trust
Stretton also contends the court erred in "[f]ailing and refusing to hear [her]
objections to the appraisal of the TD [referring to the Sleepy Hollow deed of trust] before
distributing the proceeds of the TD . . . ." This contention is without merit. First, as
8
discussed above, Stretton had no standing to object to the appraisal of the property or the
distribution of funds from the sale because she was not a beneficiary or creditor of the
estate. (Prob. Code, § 48, subd. (a).)
In her appellate briefs, Stretton argues that her constitutional rights were violated
because she was deprived of her Sleepy Hollow property without due process. The
record does not support this claim.
In February 2006, the superior court entered a judgment in a lawsuit brought by
Stretton against Father's estate and others. One of the issues in the lawsuit was the
validity of the parents' deed of trust on the Sleepy Hollow property and whether that deed
of trust was security for loans totaling approximately $253,875. In a tentative statement
of decision, the court stated that the "defense . . . provided detailed accountings, clear
documentation, clear recollections, and uncontroverted evidence that loans totaling
$253,975 were in fact given to . . . Stretton [by her parents] . . . . [Additionally], the
evidence is overwhelming that the deed of trust on Sleepy Hollow was validly prepared,
signed and filed as a reflection of those past loans. There is no evidence to suggest that
any fraud was ever perpetrated by any parties in the preparation and the filing of said
deed of trust, and therefore this Court finds it to be valid." The final judgment in the
action, filed February 1, 2006, states: "[T]he deed of trust secured by the Sleepy Hollow
residence . . . is valid and enforceable."
Despite this final judgment, Stretton continued to raise the same challenges to the
Sleepy Hollow deed of trust at various other proceedings, including in opposition to
9
Tobey's petitions to sell the Sleepy Hollow property and to lift the stay on the sale. Each
of these challenges has been rejected by the court.
Stretton was not denied her constitutional rights. Stretton had the prior
opportunity to fully litigate the issues regarding her ownership of the Sleepy Hollow
property and whether the deed of trust in favor of Father and Mother was valid and
enforceable.
Stretton argues that a prior order in her parents' dissolution proceedings required
the parties to seek an "equitable mortgage before claiming any interest in Stretton's real
property." However, any such family court order was preempted by the probate court's
later orders. Moreover, as we have stated, the validity of the nonjudicial foreclosure sale
was not before the probate court on Tobey's August 2011 petition. Tobey did not trigger
that sale; instead the sale was conducted by Orange County on an unpaid tax lien.
Stretton contends she did not have notice of the proceeding regarding Tobey's
August 2011 petition. However, as a nonparty to the proceedings, she was not entitled to
notice. In any event, the record supports that Stretton did have actual notice because she
filed extensive opposition papers and she appeared at the hearing.
In her reply brief, Stretton raises various claims regarding certain real property
located in Riverside County. However, she did not raise these issues in opposition to
Tobey's petition below and therefore the issues are not properly before us. Moreover, as
with the Sleepy Hollow property, Stretton is not an interested party entitled to raise
objections to the court's distribution of the Riverside property.
10
Stretton raises numerous additional contentions in her appellate briefs. We have
considered each point and found that none of these arguments shows the court erred in its
December 6 rulings.4
DISPOSITION
Affirmed. Appellant to pay respondent's costs on appeal.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
4 Both parties request that we take judicial notice of various documents. We deny Stretton's request except for Exhibits G and M, attached to her judicial notice request. Exhibits G and M are copies of filed court orders, and thus are proper matters for judicial notice. (Evid. Code, § 452, subd. (d)(2).) The remaining documents do not fall within a recognized exception and/or are not relevant to the appellate issues. We grant Tobey's request with respect to Exhibits 1, 2, 3, and 5 attached to her judicial notice request because these exhibits are copies of filed court orders, and thus are proper matters for judicial notice. (Ibid.) We deny Tobey's request with respect to Exhibit 4 because this document does not fall within a recognized exception. 11
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Holding. The court held that the appellant lacked standing to challenge the probate court's administration of the estate or to file a peremptory challenge against the judge because she had been disinherited and was not an interested person.
Issues
Whether the probate court erred in denying a peremptory challenge under Code of Civil Procedure section 170.6.
Whether the appellant had standing to object to the estate's status report and distribution requests.
Whether the appellant's constitutional rights were violated regarding the foreclosure of her property.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The court properly denied Stretton's section 170.6 disqualification petition on the ground that Stretton was not an interested party in the proceedings.”
“Stretton, as obligor on a Deed of Trust owned by the Estate, is at best a debtor of the estate. She lacks standing to challenge the estate's administration and is therefore not a party to these proceedings.”