Opinion
G054796
04-11-2018
Estate of MONROE F. MARSH, Deceased. STEPHEN D. MARSH, as Executor, etc., et al., Petitioners and Respondents, v. MICHAEL A. WEISS, Individually and as Executor, etc., Objector and Appellant.
Michael A. Weiss in pro. per. for Objector and Appellant. Law Offices of Stephen M. Magro, Stephen M. Magro and Andrew C. Kemper for Petitioners and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2009-00331535) OPINION Appeal from orders of the Superior Court of Orange County, David L. Belz, Judge. Appeal dismissed. Michael A. Weiss in pro. per. for Objector and Appellant. Law Offices of Stephen M. Magro, Stephen M. Magro and Andrew C. Kemper for Petitioners and Respondents.
We are now on the eighth and ninth appeals filed by attorney Michael A. Weiss in his never-ending quest to wrest the assets of the deceased husband of his now deceased mother from the deceased husband's son and grandchildren. In this ninth appeal, Weiss, individually and as the executor of the estate of his deceased mother, Jane L. Marsh (Jane), appeals from the February 21, 2017, formal order granting two petitions for preliminary distributions for the estate of Jane's deceased husband, Monroe F. Marsh (Monroe). The notice of appeal indicates Weiss also seeks to "collaterall[y] attack" several prior court orders. Respondents, who are executors of Monroe's estate, filed a motion to dismiss the appeal along with a request for judicial notice. Weiss opposed the motion and objected to the request for judicial notice. Finding Weiss lacks standing to object to orders concerning the distribution of Monroe's estate, in which our prior opinions have confirmed he has no interest, we grant the motion to dismiss. We also order sanctions imposed against Weiss for having pursued this frivolous appeal.
For clarity, we refer to the deceased persons by their first names. No disrespect is intended.
We deny respondents' request for judicial notice filed on June 8, 2017, as unnecessary because the documents relevant to this appeal have already been included in the record on appeal. (Davis v. Southern California Edison Co. (2015) 236 Cal.App.4th 619, 632, fn. 11.)
In a companion appeal filed concurrently with this opinion, Estate of Marsh (April 11, 2018, G054553) [nonpub. opn.] (Marsh 8), Weiss challenged the probate court's January 10, 2017, minute order concerning the same two petitions regarding distribution of Monroe's estate addressed in the court's February 21, 2017, formal order. We dismissed the appeal in Marsh 8 for the same reason we dismiss this appeal, i.e., lack of standing, and we imposed sanctions against Weiss for the same reasons as in this appeal.
FACTS AND PROCEDURAL BACKGROUND
The historical and procedural facts have been set forth in detail in our prior seven unpublished opinions. Nevertheless, we provide an overall summary of the proceedings to date, which we incorporate by reference from our prior appeals. Additional facts relating to the imposition of sanctions will be discussed in Part II of this opinion. I. Facts Underlying the First, Second, Third, and Fourth Appeals
When 87-year-old Monroe married 83-year-old Jane in 2003, he owned as his separate property, a residence in Irvine, California and other assets, all of which he kept in his own name. That year, Monroe obtained a reverse mortgage on the Irvine residence, secured by a trust deed, and incurred over $620,000 in debt on it during his lifetime.
In 2007, Monroe executed a will with a no contest clause. The will gave Jane the "'right to occupy'" the Irvine residence, rent free, "'for the balance of her life,'" but left the remainder of his estate to his son Stephen Marsh and Stephen's family.
After Monroe died in 2009, Stephen Marsh and his son Damon Marsh (respondents) petitioned to probate the will and were appointed executors of Monroe's estate. In June 2010, Weiss began his protracted but unsuccessful quest to obtain the assets of Monroe's estate. Weiss filed two civil actions and a will contest in the probate action on behalf of his mother, claiming she was entitled to all of Monroe's property based on a marital partnership theory. Under that theory, Jane's marriage to Monroe created a partnership in which all of Monroe's separate property became "'partnership' property" to which she succeeded upon his death as the "'surviving partner.'" Jane, with Weiss's help, also paid off the reverse mortgage on the Irvine residence. Relying on the trust deed securing the mortgage, Jane asserted ownership of the Irvine residence as the surviving spouse. Thereafter, she recorded a grant deed purporting to transfer the title of the residence to Weiss.
Respondents defeated these claims, obtaining dismissals of the civil actions and the will contest. They had Monroe's will admitted to probate and filed a petition under Probate Code section 850 to determine title to the Irvine residence. Respondents moved for summary judgment, which resulted in a determination that neither Jane nor Weiss had any interest in the Irvine residence. Respondents also successfully petitioned under section 11700 to declare that Jane's actions in the probate proceedings violated the will's no contest clause, causing a forfeiture of her rights under it. II. Our Opinions in the First, Second, Third, and Fourth Appeals
All further statutory references are to the Probate Code unless otherwise indicated.
The preceding rulings formed the basis of the first four appeals. In Estate of Marsh (June 13, 2014, G048211) [nonpub. opn.] (Marsh 4), we summarized our first three opinions as follows: "In Estate of Marsh (Feb. 7, 2012, G044938) [nonpub. opn.] [(Marsh 1)], we dismissed Jane's appeals from orders that consolidated her first civil action against the estate with this probate matter and sustained a demurrer to her first amended will contest. Our opinion affirmed orders dismissing the civil action and denying Jane's motion to vacate that dismissal. We found the lawsuit procedurally improper because, 'it represent[ed] a claim against [the] estate and therefore should have been brought under the procedures prescribed in the Probate Code' (id. at p. 14) and substantively, it asserted a frivolous marital '"partnership theory"' (id. at p. 15) 'predicated on the idea that, upon [her] marriage [to [Monroe]], all of his separate property investments became either community or "partnership" property to which she succeeded upon his death' (id. at pp. 2, 15-18).
"The same day we issued an opinion in a companion appeal. (Estate of Marsh (Feb. 7, 2012, G045474) [nonpub. opn.] [(Marsh 2)].) It dismissed Jane's appeals from orders that consolidated her second civil action against the estate with [the] probate matter and denied her motion to abate a petition to determine title to [Monroe's] Irvine home ( . . . § 850 . . . ). ([Marsh 2], supra, G045474 at p. 5.) We also affirmed orders that admitted Marsh's will to probate, granted letters of administration to [respondents] again rejecting arguments based on the frivolous marital partnership theory, and dismissed Jane's second civil action. (Id. at pp. 5-7.)
"Ten months later we issued an opinion in Jane's third appeal affirming a judgment for [respondents] on their section 850 petition which declared the estate held title to the Irvine residence. (Estate of Marsh (Dec. 7, 2012, G046446) [nonpub. opn.] [(Marsh 3)].) We rejected Jane's reliance 'on her affidavit of surviving spouse under section 13540' because 'the statute's plain terms demonstrate it does not apply to separate property' ([Marsh 3], supra, G046446 at p. 6), and [Weiss] could not claim to be her 'bona fide transferee . . . because the property was never validly transferred to Jane in the first place" (id. at pp. 7, 12). Our opinion also rejected Jane's claims based on the doctrine of estoppel (id. at pp. 7-10), the law of irrevocable trusts (id. at pp. 10-11), the arbitration clause in a deed of trust securing a reverse mortgage [Monroe] had obtained (id. at pp. 12-13), and the assertion this court prematurely issued the remittiturs in the prior appeals (id. at pp. 13-14). However, we reversed an order that imposed sanctions on Jane for failing to appear at a settlement conference. (Id. at p. 14.)" (Marsh 4, supra, G048211, at pp. 2-3.)
Weiss filed the fourth appeal on behalf of Jane and himself in propria persona as an objector in the probate action. Our opinion affirmed an order determining Jane was not entitled to any distribution under Monroe's will because she had violated its no contest clause without probable cause. (Marsh 4, supra, G048211, at pp. 3, 12-13.) We agreed with respondents that Jane lacked probable cause because her claims about the violation of her property rights in her capacity as surviving spouse, "'owner of separate and community property, as heir, as creditor, and as a surviving partner'" were "the same arguments this court found were frivolous in the prior appeals." (Id. at p. 12.) We applied the law of the case doctrine to bar Weiss and Jane's claims the probate court lacked jurisdiction due to our allegedly premature issuance of remittiturs in Marsh 1, supra, G044938 and Marsh 2, supra, G045474, and rejected their recurring argument "the income produced by [Monroe's] assets during their marriage constitutes community earnings and that [Monroe] gave away much of this income in violation of [Jane's] community property rights[,] . . . [and] her claim that title to the [Irvine residence] was reconveyed to her upon her payoff of the reverse mortgage, including her assertion that the principles of trust law apply to deeds of trust." (Id. at p. 12.) We reasoned, "we rejected these arguments in the earlier appeals and the doctrine of the law of the case bars Jane from reasserting them in this case." (Ibid.) Finally, we found meritless Weiss and Jane's myriad of challenges to the probate court's granting of respondents' section 11700 petition to declare Jane disinherited under the will. (Id. at pp. 7-10.) We need not repeat them all because the reasoning and result is not relevant to this appeal. III. Facts Underlying the Fifth, Sixth, and Seventh Appeals and Our Opinions
After we issued our opinion in Marsh 4, supra, G048211, respondents prevailed against Weiss and Jane's (1) combined petitions for "family support," an allocation of community debts, temporary possession of the Irvine residence, and a declaration Weiss owned the Irvine residence; (2) motion to correct "clerical errors;" and (3) ex parte application under section 10588 to prohibit respondents from selling the Irvine residence without court supervision. Weiss thereafter unsuccessfully opposed respondents' petition for an order confirming the all cash sale of the Irvine residence. To avoid losing a favorable purchase offer, respondents requested and received an order allowing them to complete the sale during the pendency of the appeal from the prior order granting respondents' petition to confirm the sale. Respondents thereafter completed the sale.
Weiss, in propria persona, filed the fifth, sixth, and seventh appeals as an individual and as executor of his now deceased mother's estate and those appeals were from the orders issued after we filed our opinion in Marsh 4, supra, G048211. In Estate of Marsh (Nov. 7, 2016, G052082) [nonpub. opn.] (Marsh 5), we dismissed as moot Weiss's appeal from the order denying his ex parte application to prohibit respondents from selling the Irvine residence. (Marsh 5, supra, G052082, at pp. 3, 7.) We affirmed the orders dismissing his combined petitions and denying the motion to correct clerical errors. (Id. at pp. 2, 13.)
We issued companion opinions on November 7, 2016, in the sixth and seventh appeals. Both appeals involved the sale of the Irvine residence. In Estate of Marsh (Nov. 7, 2016, G052208) [nonpub. opn.] (Marsh 6), we concluded Weiss lacked standing to challenge the order confirming the sale, as well as any interest in Monroe's estate. (Id. at pp. 2, 5-6.)
In Estate of Marsh (Nov. 7, 2016, G052574) [nonpub. opn.] (Marsh 7), we affirmed the probate court's order granting an ex parte application to carry out the sale of the Irvine residence. (Id. at pp. 2-3.) Relying on Marsh 6, supra, G052208, we concluded, "Since [Weiss] lacked standing to challenge the order confirming the sale of the real property, [he] can have no greater interest in objecting to an order granting respondents relief from the stay triggered by [his] filing the prior appeal." (Marsh 7, supra, G052208, at p. 3.) This brings us to Weiss's most recent companion appeals (the eighth and ninth appeals). IV. The Current Companion Appeals
The probate court issued a minute order on January 10, 2017, approving two petitions for distributions of Monroe's estate and dismissing Weiss's objections for lack of standing. The January 10, 2017, minute order is the subject of Weiss's eighth appeal, G054553.
On February 21, 2017, the probate court signed and filed formal orders submitted by respondents regarding the same two petitions for preliminary distributions of Monroe's estate that were the subject of the January 2017 minute order. This February order is the subject of Weiss's ninth appeal, which we consider in this opinion. We recognize Weiss's notice of appeal indicates that in addition to the February order, he is "collateral[ly] attack[ing]" the January 10, 2017, minute order and numerous other orders made in this probate case between August 2010 and December 2016.
DISCUSSION
I. Motion to Dismiss
Respondents moved to dismiss this ninth appeal on the grounds Weiss lacks standing in this probate case, and therefore lacks standing to appeal any order made by the probate court. They are right. "A lack of standing is a jurisdictional defect to an action that mandates dismissal. [Citations.]" (Cummings v. Stanley (2009) 177 Cal.App.4th 493, 501.)
"Lack of standing may be raised at any time in the proceeding, including at trial or in an appeal. [Citations]" (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 1000 (Blumhorst).) "A litigant's standing to sue is a threshold issue to be resolved before the matter can be reached on the merits. [Citation.] 'If we were to conclude that plaintiff did not have standing to maintain the action, not having been personally damaged by the defendants' conduct, then there would be no need to address the merits of her cause. Equally wasteful of judicial resources would be a resolution on the merits without reaching the standing issue.' [Citation.] We will not address the merits of litigation when the plaintiff lacks standing, because '"California courts have no power . . . to render advisory opinions or give declaratory relief."' [Citation.] Standing '"goes to the existence of a cause of action." [Citation.]' [Citation.]" (Ibid.)
"Code of Civil Procedure section 367 provides: 'Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.' [Citation.] The issue of whether a party has standing focuses on the plaintiff, not the issues he or she seeks to have determined.' [Citation.] 'A person who invokes the judicial process lacks standing if he, or those whom he properly represents, "does not have a real interest in the ultimate adjudication because [he] has neither suffered nor is about to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented." [Citation.]' [Citations.]" (Blumhorst, supra, 126 Cal.App.4th at p. 1001.)
In this appeal, we need not analyze the issue of lack of standing because we already made this legal determination in a prior appeal arising from the same underlying probate dispute. In other words, Weiss's lack of standing is the law of the case.
Unlike res judicata and collateral estoppel, both of which arise after entry of final judgment in one lawsuit and commencement of another, the doctrine of law of the case operates within the proceedings in a single lawsuit. "'Under the law of the case doctrine, when an appellate court "'states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal . . . .'" [Citation.] Absent an applicable exception, the doctrine "requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong." [Citation.] As its name suggests, the doctrine applies only to an appellate court's decision on a question of law; it does not apply to questions of fact.' [Citation.]" (Investors Equity Life Holding Co. v. Schmidt (2015) 233 Cal.App.4th 1363, 1377.)
The law of the case may apply even where the appeal is from a decision "short of a full trial, including a judgment on a demurrer, a nonsuit order or [other] motion. [Citation.]" (Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 356.) "Like res judicata, the doctrine of the law of the case serves to promote finality of litigation by preventing a party from relitigating questions previously decided by a reviewing court. [Citation.]" (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1291.) "From a policy standpoint it is not difficult to envisage the frustrating consequences that could flow from a practice allowing different panels of the Court of Appeal to redetermine issues which were disposed of on a previous appeal in the same case." (See People v. Shuey (1975) 13 Cal.3d 835, 840 (Shuey), overruled on another ground as recognized by People v. Bennett (1998) 17 Cal.4th 373, 389, fn. 5.)
There are three requirements for the doctrine to apply. (See Shuey, supra, 13 Cal.3d at p. 842.) First, the point of law involved must have been necessary to the prior decision. Second, the matter must have been actually presented and determined by the court. And third, application of the doctrine will not result in an unjust decision. (Ibid.)
Weiss addresses the issue of law of the case in his opposition to the motion to dismiss. In his briefing, he makes a jurisdictional argument in addition to challenging the first and third requirements of the doctrine (apparently conceding the second requirement was satisfied). We conclude Weiss's contentions lack merit and will address each separately below. A. Jurisdiction
In his opposition, Weiss argues that because the trial court lacked jurisdiction to make the order, this court was without jurisdiction to review the ruling, and "[t]he motion to dismiss cannot create jurisdiction in this appeal." This argument is based on the faulty premise the probate court lacked jurisdiction to issue its January 10, 2017, minute order, and February 21, 2017, formal order, because the remittiturs in the Marsh 6 and Marsh 7 appeals had not yet been issued.
Code of Civil Procedure "section 916, subdivision (a) stays all further trial court proceedings 'upon the matters embraced' in or 'affected' by the appeal. . . . '[W]hether a matter is "embraced" in or "affected" by a judgment [or order] . . . depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the "effectiveness" of the appeal.' [Citation.] 'If so, the proceedings are stayed; if not, the proceedings are permitted.' [Citation.]" (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.) The appeals in Marsh 6 and Marsh 7 involved the sale of the Irvine residence. The proceedings here, regarding the two petitions for preliminary distributions involved issues distinct from the Irvine residence's sale. Thus, the probate court and this court have jurisdiction. B. First and Second Requirements for Law of the Case Doctrine
For the law of the case doctrine to apply, "'the point of law involved must have been necessary to the prior decision [and] the matter must have been actually presented and determined by the court . . .' [Citations.]" (Shuey, supra, 13 Cal.3d at p. 842.) For that reason, the first logical step is to identify what we did and did not decide in the prior appeals. Specifically, we will review our opinion in Marsh 6. The parties agree the issue of standing was addressed in that appeal, however, Weiss argues "the point actually decided and necessary to that opinion had nothing to do with the distribution of the proceeds of the Irvine [residence] nor any other assets." He reads the opinion narrowly, asserting "the point actually decided and necessary to that opinion concerned standing of appellants to object to the order authorizing the sale." For this reason Weiss concludes the Marsh 6 opinion's discussion of standing did not become law of the case and did not need to be followed in subsequent trial court hearings or in the appeal before us now. Weiss misconstrues the scope of the Marsh 6 opinion.
The appeal addressed much more than whether Weiss had standing to object to the sale of the Irvine residence. Weiss apparently fails to appreciate that before reaching that ultimate conclusion, this court first made the final legal determination he (and Jane) lacked any interest in Monroe's entire estate.
The opinion in Marsh 6 plainly stated, "Prior litigation in this estate proceeding established that when Monroe married Jane, he owned the residence as his separate property. During the marriage Monroe kept his property, including the Irvine residence, in his own name and separate from the couple's community assets. Thus, Jane never acquired an interest in the residence during the marriage. Further, by unsuccessfully challenging Monroe's estate plan after he died, Jane lost her life estate in the use and occupancy of the residence. [Weiss's] claim to an interest in the Irvine residence was through his mother's attempt to transfer title of it to him after she paid off the reverse mortgage. Since the probate court decreed invalid Jane's assertion she acquired the residence by paying off the reverse mortgage, [Weiss's] purported ownership interest in the property also failed. [¶] Consequently, as of the date respondents sought confirmation of the sale . . . , [Weiss] lacked any interest in Monroe's estate, including the Irvine residence." (Marsh 6, supra, at pp. 5-6, italics added.)
In conclusion, our prior opinion's statement that "[Weiss] lacked any interest in Monroe's estate" was a principle or rule of law necessary to our decision. If we had concluded Weiss had an interest in the estate, we would have reached the opposite conclusion and held Weiss had standing to maintain the appeal as a "party aggrieved." (Code Civ. Proc., § 902.) Generally, "[o]ne is considered 'aggrieved' whose rights or interests are injuriously affected by the judgment. [Citations.] [Weiss's] interest '"must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment."' [Citation.]" (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.) In probate matters, to have appellate standing, a party must "hav[e] an interest recognized by law in the subject matter of the judgment, which interest is injuriously affected by the judgment . . . ." (Estate of Colton (1912) 164 Cal. 1, 5.) Such is not the case here. C. Third Requirement for Law of the Case Doctrine
Application of the law of the case doctrine cannot result in an unjust decision. "The law of the case doctrine applies to this court even though the previous appeal was before the Court of Appeal, and it applies even though this court may conclude the previous Court of Appeal opinion was erroneous. [Citation.] 'Indeed, it is only when the former rule is deemed erroneous that the doctrine of the law of the case becomes at all important.' [Citation.] The doctrine is, we have recognized, harsh. [Citation.] Accordingly, we have declined to adhere to it where its application would result in an unjust decision, e.g., where there has been a manifest misapplication of existing principles resulting in substantial injustice, or where the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations. The unjust decision exception does not apply when there is a mere disagreement with the prior appellate determination. [Citation.]" (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491-492 (Morohoshi).)
Weiss complains the "manifest injury . . . is obvious." He argues application of the law of the case doctrine will cause an injustice because trial courts must adhere to an appellate opinion lacking "careful draftsmanship." He proclaims it is unfair that he has been unable to collect anything from Monroe's estate. It appears Weiss's "unjust decision" argument is little more than disagreement with the prior appellate determinations. This is not a proper reason to disregard the law of the case doctrine. (Morohoshi, supra, 34 Cal.4th at p. 492.) D. Collateral Attack
Weiss's notice of appeal includes a list of approximately 20 orders entered at various points throughout the eight years of this probate litigation that Weiss intended to challenge in this appeal. Some, but not all of these orders, were discussed in Weiss's brief and those that were not are waived. In any event, for the same reason we have dismissed the appeal of the most recent estate disbursement orders, we dismiss the portion of the appeal regarding the other orders relating to the estate. As explained above, having determined Weiss lacks an actionable interest in Monroe's estate to be the law of the case, he lacks standing to challenge any and all orders relating to this probate litigation regarding the estate. In other words, he does do not have an interest or right injuriously affected by these orders.
II. Vexatious Litigant and Sanctions Issues
A. Weiss is a Vexatious Litigant
On January 18, 2018, on this court's own motion, we directed Weiss to show cause at a hearing to be held in conjunction with oral argument on this appeal, why this court should not declare him to be a vexatious litigant and enter a prefiling order pursuant to Code of Civil Procedure section 391.7, subdivision (a). Both Weiss and respondents were afforded 15 days to file responses to the court's January 18, 2018, order. In their response, respondents informed this court that after the briefing in this appeal was completed, the superior court granted their motion to declare Weiss to be a vexatious litigant pursuant to Code of Civil Procedure section 391, and to enter a prefiling order against him pursuant to Code of Civil Procedure section 391.7. On February 14, 2018, we notified the parities we would take judicial notice of the August 4, 2017, minute order granting respondents' motion and the prefiling order entered on August 16, 2017. We further notified the parties that because Weiss is now subject to a prefiling order prohibiting him from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed, it would be unnecessary for this court to hold a hearing on that matter. Accordingly, we will not address this matter further. B. Sanctions
In our January 18, 2018, order, in compliance with the procedural requirements set forth in In re Marriage of Flaherty (1982) 31 Cal.3d 637 (Flaherty), we also directed Weiss to show cause why this court should not, on its own motion, impose sanctions against him in both of the current appeals—case Nos. G054553 (Marsh 8) and G054796 (Marsh 9)—pursuant to California Rules of Court, rule 8.276, payable to respondents and to this court, for having filed frivolous appeals or appealing to cause delay, and for other violations of the California Rules of Court. Both Weiss and respondents were afforded 15 days to file objections or responses to the court's January 18, 2018, order. Weiss filed opposition; respondents filed a response agreeing sanctions are appropriate and suggesting an appropriate amount. This opinion constitutes the written statement of reasons required by Flaherty for imposition of sanctions against Weiss in case No. G054553 and case No. G054796. (Flaherty, supra, 31 Cal.3d at p. 654.)
On the day of oral argument in this matter, February 20, 2018, in case No. G054796, Marsh 9, Weiss electronically submitted a 654-page document as an additional/supplemental response to our January 18, 2018, order. The document was received only and not filed. The document is comprised of: (1) a photocopy of a 2010 cashier's check (which Weiss apparently claims represents the funds used to pay the reverse mortgage on the Irvine residence in 2010); (2) 638 pages of Monroe's bank records and hand written bank account ledgers with a declaration signed by Weiss in 2012 stating he is the "authorized custodian of [Monroe's] business records" in an apparent attempt to authenticate those documents; and (3) a one-page undated "Marsden worksheet" apparently generated by Weiss on the "CFLR Propertizer." The document begins with a scant two pages of analysis by Weiss in which he refers to anti-forfeiture policies that should compel return of Jane's separate property to him. He also makes a vague reference to the propriety of the trial court's vexatious litigant prefiling order, an order which has not been challenged on appeal. Weiss has not demonstrated the proposed filing is proper. Moreover, the documents attached to his submission have no relevance to whether sanctions should be imposed nor do they in any way undermine the amount of attorney fees and costs respondents claim they have incurred in this endless litigation. The clerk of the court is directed to reject the document for filing. --------
Code of Civil Procedure section 907 allows a reviewing court to "add to the costs on appeal such damages as may be just" when it appears that an appeal is frivolous or taken solely for delay. California Rules of Court, rule 8.276(a), allows the Court of Appeal on its own motion to impose sanctions on a party or an attorney for: "(1) Taking a frivolous appeal or appealing solely to cause delay; [¶] (2) Including in the record any matter not reasonably material to the appeal's determination; [¶] (3) Filing a frivolous motion; or [¶] (4) Committing any other unreasonable violation of these rules."
In Flaherty, the California Supreme Court explained the rationale for the imposition of sanctions against a party by a reviewing court: "An appeal taken for an improper motive represents a time-consuming and disruptive use of the judicial process. Similarly, an appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts." (Flaherty, supra, 31 Cal.3d at pp. 649-650.)
We begin with the obvious ground for imposition of sanctions—the appeals are patently frivolous. Flaherty set forth both an objective and subjective standard for determining whether an appeal is frivolous: An appeal is considered frivolous "when it is prosecuted for an improper motive--to harass the respondent or delay the effect of an adverse judgment--or when it indisputably has no merit--when any reasonable attorney would agree that the appeal is totally and completely without merit." (Flaherty, supra, 31 Cal.3d at p. 650.) "The two standards are often used together, with one providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay." (Id. at p. 649.)
With respect to the objective standard under Flaherty, the appeals indisputably lack merit. These are the eighth and ninth appeals prosecuted by Weiss in his attempt to wrest Monroe's estate, the Irvine residence in particular, from Monroe's chosen heirs—his son and his son's family. In each of the prior seven appeals this court has emphatically rejected the bases upon which Weiss claims an interest in Monroe's estate—i.e., Weiss's "marital partnership theory" upon which he asserts his mother had succeeded to all of Monroe's property upon his death, and his claim that by paying off the reverse mortgage on the Irvine residence the property was reconveyed to Jane and thus validly conveyed by her to Weiss. In Marsh 4, we affirmed orders Jane was not entitled to any distribution under Monroe's will because she violated the will's no contest clause and, applying the doctrine of law of the case, reaffirmed our conclusions as to Weiss's martial partnership theory and his assertion that through Jane he held title to the Irvine residence. In Marsh 5, Marsh 6, and Marsh 7, we again reaffirmed our conclusions Jane had no interest in Monroe's estate and Weiss lacked standing to challenge orders concerning sale of the Irvine residence. No reasonable attorney could possibly conclude that Weiss had standing to challenge the preliminary distribution orders that are the subject of this appeal when seven prior appellate court opinions have concluded he may not.
It is equally clear Weiss has pursued the instant appeals for the improper purpose of harassing respondents and causing delay in the distribution of Monroe's estate which has now been in probate for almost 10 years. This is not Weiss's first run in with sanctions in this matter—in both Marsh 1 and Marsh 2, we ordered sanctions be imposed on Weiss personally—and not on his mother—for Weiss having filed frivolous appeals and filed appeals solely to delay, leaving it to the trial court to determine the amount. Weiss was ordered to pay over $32,000 in sanctions to respondents relating to those appeals. In addition, in February 2015, the trial court imposed additional nonmonetary sanctions against Weiss including requiring him to obtain approval from the supervising judge of the probate court before filing any additional pleadings in this probate matter. Despite having been sanctioned for frivolous appeals, Weiss has continued to aggressively litigate these matters—one can only assume in an effort to either wear respondents down or deplete Monroe's estate so there will be nothing left for them.
We add to the frivolousness of these appeals Weiss's other improper conduct. Weiss filed meritless motions in his prior appeals in an attempt to influence the outcome of the current appeals. After these appeals became fully briefed, Weiss filed five identical motions to recall the remittiturs in five of his prior appeals Marsh 1 (G044938), Marsh 3 (G046446), Marsh 5 (G052082), Marsh 6 (G052208), and Marsh 7 (G052574), which were denied. Weiss apparently believed he could make the prior opinions "go away" freeing him from any law of the case impact our prior decisions had on his current appeals and leaving him free to challenge anew every order issued by the trial court in this matter. (See Cal. Rules of Court, rule 8.272(c)(3) [order recalling remittitur issued after decision by opinion does not supersede the opinion].)
In addition, Weiss has barraged this court and respondents in these appeals with frivolous motions and attempts to bypass our review that have imposed an overwhelming burden on scarce judicial resources. In the appeal in case No. G054553, Marsh 8, after filing his notice of appeal from a single January 10, 2017 order, Weiss attempted to file an amended notice of appeal designating 19 additional orders dating back to 2010. Many of the orders Weiss attempted to add to his notice were the subject of prior appeals; one was a "sticky note" written by one of the many trial judges who have presided over this matter. After we rejected the filing, Weiss filed a motion for leave to amend the notice of appeal, and after respondents filed opposition, Weiss filed a motion to withdraw his first motion and file a different amended notice of appeal.
Within a week of this court's January 18, 2018, order notifying Weiss we were considering imposing sanctions on him in both appeals, Weiss served this court with copies of Supreme Court petitions of review bearing the case numbers of both appeals, in which he appears to be challenging the denial of the motions to recall remittitur in the five prior appeals. Yet it does not appear Weiss actually filed those petitions for review in the Supreme Court.
Next, in addition to filing a 42-page combined opposition in response to our January 18, 2018 order, Weiss filed in both appeals a 32-page "demurrer" to our order, a document which subsequently stricken as an improper filing. Immediately following our February 14, 2018, order striking the "demurrer," in both appeals and taking judicial notice of the trial court's vexatious litigant prefiling order, Weiss filed petitions to transfer the appeal in Marsh 9 to the Supreme Court (Cal. Rules of Court, rule 8.552(c) [transfer of cause that presents issue of great public importance that Supreme Court must promptly resolve]), which petition was subsequently denied. (Estate of Marsh, transfer petition denied Mar. 21, 2018, S247145.)
Additionally, Weiss has also imposed an overwhelming burden on this court by his gross over-designation of the records on these appeals. In both these current appeals, Weiss proceeded by way of an appellant's appendix. (Cal. Rules of Court, rule 8.124.) The appendix in each appeal purported to incorporate by reference the entire record from each of his seven prior appeals and one of his prior writ proceedings (Cal. Rules of Court, rule 8.124(b)(2)), attempting to add tens of thousands of additional pages to the appendix in each of the current appeals. Yet Weiss's opening briefs in both these appeals contain only a few citations to any of the pages of those incorporated records. (See Cal. Rules of Court, rules 8.124(b)(3)(A) [appendix must not contain documents unnecessary for proper consideration of the issues]; 8.276(a)(2) [sanctions including in record any matter not reasonably material to appeal's determination].)
Based on these findings, we impose sanctions against Weiss. The damages suffered by respondents resulting from these frivolous appeals are the reasonable value of their counsel's services. (Diaz v. Professional Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1217.) Respondents' counsel has submitted a detailed declaration accompanied by billing statements demonstrating respondents have incurred $37,059 in attorney fees directly related to responding to the appeal in Marsh 8, and $19,795 in attorney fees directly related to responding to the appeal in Marsh 9 through the date the declarations were prepared and filed. In addition, respondents have detailed another $79,347 in attorney fees incurred in responding to the appeals in Marsh 5, Marsh 6, and Marsh 7 and in the trial court proceedings that were the subject of those three appeals. We limit the sanctions awarded to respondents to their attorney fees directly related to these two appeals. Accordingly, as part of respondents' costs on these two appeals, they are to be awarded sanctions of $37,059 in case No. G054553 and sanctions of $19,795 in case No. G054796. The damages suffered by this court, and the taxpayers, are set at $8,500 for each appeal (see Diaz, supra, 16 Cal.App.5th at p. 1217) an amount which is frankly modest under the circumstances.
Furthermore, although Weiss is representing himself in propria persona in both these appeals, he is a licensed attorney and the imposition of sanctions against him requires notification to the State Bar. (Bus. & Prof. Code, §§ 6086.7, subd. (a), 6068, subd. (o)(3); Pierotti v. Torian (2000) 81 Cal.App.4th 17, 37-38.)
DISPOSITION
Having found Weiss lacks standing to object to the distribution of an estate in which he has no interest, respondents' motion to dismiss the appeal in case No. G054796 is granted and the appeal is dismissed. Respondents shall recover their costs on appeal.
As sanctions for bringing this frivolous appeal in case No. G054796 and unreasonably violating the Rules of Court, Weiss shall pay $19,795 to respondents. Weiss shall also pay $8,500 to the clerk of this court and the clerk of this court is directed to deposit said sums in the general fund. All sanctions shall be paid no later than 15 days after the date the remittitur is issued.
Attorney Michael A. Weiss and the clerk of this court are each ordered to forward a copy of this opinion to the State Bar upon return of the remittitur. The clerk of this court shall also notify attorney Michael A. Weiss this matter has been referred to the State Bar. (Bus. & Prof. Code, §§ 6086.7, subd. (a), 6068, subd. (o)(3).)
O'LEARY, P. J. WE CONCUR: MOORE, J. THOMPSON, J.