Estate of Katz CA4/3

Filed 7/7/14 Estate of Katz CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Estate of DAVID KATZ, Deceased.

GARY JOSHUA KATZ, as Executor, etc.,

Petitioner and Appellant, G049807

v. (Super. Ct. No. PSP1100018)

EL PASEO COLLECTION ELEGANTE, OPINION

Claimant and Respondent.

Appeal from a judgment of the Superior Court of Riverside County, James A. Cox, Judge. Affirmed. Nethery and Ofseyer, D. Martin Nethery and Jeremy J. Ofseyer for Petitioner and Appellant. Hart, King & Coldren, Robert S. Coldren and Boyd L. Hill for Claimant and Respondent.

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Petitioner and appellant Gary Joshua Katz, as executor of the Estate of David Katz, appeals from an order denying his petition for attorney fees after a special proceeding in the probate court. Petitioner filed an action seeking to substitute funds in a blocked account in place of a lease guaranty given by decedent to claimant and respondent El Paseo Collection Elegante, which was leasing space to decedent’s corporation. Petitioner made a Code of Civil Procedure section 998 (section 998) offer. Respondent did not accept the offer and the case proceeded to trial. The trial court denied petitioner’s subsequent motion for costs and attorney fees on several grounds, including finding it could not determine whether the section 998 offer was better than the judgment because certain conditions in the offer were too uncertain for the court to value. Petitioner contends it was error to find the section 998 offer was uncertain because its terms were clear and superior to those contained in the judgment. He also maintains the court erred in ruling this was not an action on a contract so petitioner was not entitled to attorney fees under Civil Code section 1717 (section 1717), and in concluding Probate Code section 1002 bars an award of attorney fees under both section 998 and section 1717. After de novo review we determine the conditional terms of the offer are too uncertain to be valued and affirm the judgment. FACTS AND PROCEDURAL HISTORY David Katz (decedent) and his wife, Constance Katz, were shareholders of DCK Corporation, Inc. In 1998 DCK entered into a lease (Lease) for premises owned by respondent. Decedent and Constance each executed a written Guaranty of the Lease (Guaranty). Pursuant to two addenda, the term of the Lease was extended to July 2016. And each Guaranty was reaffirmed at the time of the extensions. Decedent died in December 2010 with Constance following within a month. Decedent’s estate owned 100 percent of DCK’s estate. After petitioner contacted