Cavaretta v. Bixby CA2/8

Filed 9/2/14 Cavaretta v. Bixby CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

TRACY M. CAVARETTA, as Special B243891 Administrator, etc., (Los Angeles County Petitioner and Respondent, Super. Ct. No. YP011038)

v.

SHEILA BIXBY, as Special Administrator, etc.,

Objector and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Dudley Gray, II, Judge. Reversed and remanded.

Law Offices of Najila K. Brent and Najila K. Brent for Objector and Appellant.

Burkley & Brandlin, Walter R. Burkley, Jr., and Deborah C. Keesey for Petitioner and Respondent. ______________________________

Before his death, Albert W. Duclos retained the services of attorney Kelly W. Bixby (now also deceased) for Mr. Duclos’s divorce from his wife. In the course of that divorce, the family home was sold, and Mr. Duclos’s share of the proceeds was deposited into Mr. Bixby’s client trust account. Mr. Bixby also received for deposit into Mr. Bixby’s client trust account a cashier’s check settling an insurance claim for damage to the family house. None of these funds were ever paid to Mr. Duclos. Following Mr. Duclos’s death, his estate sought to recover the money during probate proceedings to administer his will. Mr. Bixby failed to respond to a petition filed pursuant to Probate Code section 850 to recover the funds, and a default judgment was entered, ordering Mr. Bixby to turn over more than $317,000 to the estate, and to provide an accounting. Mr. Bixby failed to provide an accounting, and ultimately filed for bankruptcy protection. The personal representative of the Duclos estate filed a subsequent petition under Probate Code section 859, seeking double damages for Mr. Bixby’s bad faith retention of Mr. Duclos’s money. Before the hearing on that petition, the bankruptcy court granted the motion of the personal representative of Mr. Duclos’s estate for relief from the bankruptcy stay. However, the order granting relief from the stay was not signed and entered on the bankruptcy court’s docket until after the hearing on the Probate Code section 859 petition in probate court. The probate court found that Mr. Bixby acted in bad faith, and doubled the damages previously ordered. After Mr. Bixby’s death, his widow, Sheila Bixby, special administrator of his estate, substituted for her husband to pursue this appeal. Mrs. Bixby asserts a number of arguments on appeal. Among them is her argument that the probate court lacked jurisdiction to conduct the Probate Code section 859 hearing at which the court ordered double damages, because the order granting relief from the bankruptcy stay had not been entered. We agree, and on that basis, we reverse, declining to reach the other arguments asserted on appeal.