Estate of Richardson CA4/1

Filed 11/14/13 Estate of Richardson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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

issues before us.

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.
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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.

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 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.
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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.

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 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

(1990) 219 Cal.App.3d 663, 668.) Probate Code section 48, subdivision (a)(1) identifies

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.
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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

Prob. Code, §§ 48, subd. (a), 11600, 11602.) 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 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,

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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

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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

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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.

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 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.
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