Perry v. Mesa CA2/2

Filed 10/27/23 Perry v. Mesa CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

JAMES L. PERRY, B322063 Plaintiff and Appellant, (Los Angeles County v. Super. Ct. No. 19STCV33686) FRANCISCO MARIO MESA, as Administrator, etc., Defendant and Respondent.

APPEAL from orders of the Superior Court of Los Angeles County. Steven J. Kleifield, Judge. Affirmed. Law Offices of Michael S. Goergen and Michael S. Goergen for Plaintiff and Appellant. Manning & Kass, Ellrod, Ramirez; Trester, Daniel Herbert, Steven J. Renick and Kirsten A. Brown for Defendant and Respondent.

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Defendant Francisco Mario Mesa (Mesa), the successor administrator of the Estate of Kendra Zimmerman (estate), successfully sought relief from the default and default judgment that resulted from the mistake or inexcusable neglect of the attorney for the prior estate administrator. (Code Civ. Proc., § 473, subd. (b).)1 On appeal, plaintiff James L. Perry (Perry) contends Mesa failed to provide a sufficient showing to support mandatory relief under the statute. We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND According to Perry, Kendra Zimmerman allegedly contracted with him in 2014 to finance his production of a movie. She died intestate in November 2017, before paying Perry her purportedly agreed-upon $ 300,000 investment. Mesa was her surviving spouse. What followed were concurrent and related probate and civil actions. A. Probate Action (Super. Ct. L.A. County No. 18STPB00048) On January 3, 2018, a probate action was filed to administer the estate. Later that year, Perry filed a $310,424.51 creditor’s claim plus legal fees, which was ultimately deemed denied under Probate Code section 9256. In August 2019, Cara L. Harris (Harris) was appointed the estate administrator, and letters were issued the following month. By December of that year, Harris was unable to continue as estate administrator. She filed notice of resignation on

1 Undesignated statutory references are to the Code of Civil Procedure.

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January 6, 2020, “effective immediately.” Thereafter, Mesa petitioned to succeed Harris. Perry objected. On October 29, 2020, the probate court held a hearing on Mesa’s petition and overruled Perry’s objections. The court appointed Mesa as the successor estate administrator but ruled Harris’s resignation was not effective “until new letters have issued.” Harris was present at the hearing. In November 2020, Mesa was appointed the successor estate administrator, and letters were issued the following month. B. Civil Action (Super. Ct. L.A. County No. 19STCV33686) In September 2019, Perry filed a verified complaint in propria persona for breach of contract and related causes of action. The complaint named Mesa, individually, the estate, and Does 1 through 20 as defendants.2 Mesa answered the complaint as an individual defendant. In November 2019, Perry personally served Harris, as the estate administrator on behalf of the estate. Harris did not respond to the complaint. On January 21, 2020, Perry, now represented by counsel, filed a fictious name amendment to substitute Harris, the estate administrator, for the estate in the complaint. In March 2020, Perry again personally served Harris as the estate administrator on behalf of the estate. (On March 3, 2020, Perry filed an amended proof of service that Harris had been served as