Gillaizeau v. Bank of America

Opinion

KAUFMAN, J. Genevieve Gillaizeau (plaintiff) instituted this action in effect to invalidate an order of the Riverside Superior Court sitting in probate admitting to probate the purported last will and testament of Darryl F. [838]Zanuck. The trial court sustained without leave to amend the general demurrers to plaintiff’s second amended complaint filed by defendants Bank of America National Trust and Savings Association (Bank), Virginia Fox Zanuck, Darrylin Zanuck de Pineda and Richard Darryl Zanuck.

Plaintiff appealed and defendants in their defense of the appeal sought sanctions against plaintiff for instituting and maintaining a frivolous appeal. On August 17, 1984, this court filed an unpublished opinion in which we modified the order of the superior court to include a dismissal of the action to make the order a final, appealable judgment; affirmed the judgment of dismissal; and imposed a sanction of $3,000 against plaintiff’s attorney Gerald Goldfarb “for counseling and prosecuting a frivolous appeal.” On November 15, 1984, the California Supreme Court granted plaintiff’s petition for hearing and the matter was transferred to that court. On January 29, 1986, the California Supreme Court retransferred the appeal to this court “with directions to refile its unpublished opinion without sanctions.”

This court then set the matter on calendar for oral argument and directed the parties to file supplemental briefs on the issue of the California Supreme Court’s authority to direct this court to resolve a particular issue in a specific way. Thereafter, on February 28, 1986, the parties filed a stipulation stating in part that they did not wish to incur further legal expenses in respect to the issue of sanctions and that “[tjherefore, the parties respectfully request that the Court of Appeal take off calendar the oral argument scheduled for June 3, 1986, at 9:30 a.m., refile its unpublished opinion which was originally filed August 17, 1984, without sanctions, and issue the remittitur forthwith.”

We have no doubt the Supreme Court could have itself issued a written opinion resolving the sanctions issue and then retransferred the case to this court for disposition of the remaining issues. (See, e.g., Taylor v. Union Pac. R. R. Corp. (1976) 16 Cal.3d 893, 895 [130 Cal.Rptr. 23, 549 P.2d 855]; Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 511, 514, 525 [169 Cal.Rptr. 904, 620 P.2d 565]; Ferguson v. Keays (1971) 4 Cal.3d 649, 659 [94 Cal.Rptr. 398, 484 P.2d 70].) However, with all due respect, we are unaware of any authority authorizing the California Supreme Court to direct a Court of Appeal to dispose of in a specific manner an issue requiring the exercise of judicial discretion. Indeed, we are confident that authority and the sound administration of justice dictate the contrary. (Cf. Krueger v. Superior Court (1979) 89 Cal.App.3d 934, 936 [152 Cal.Rptr. 870]; Pedlow v. Superior Court (1980) 112 Cal.App.3d 368, 370 [169 Cal.Rptr. 326]; see generally 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 708, pp. 680-683.) Accordingly, we should have had respectfully to decline to comply with the directions of the California Supreme Court even