Opinion
B294839
02-19-2020
Estate of WILMONT ARGEN ODOM, JR., Deceased. JOYCE SCEAU, Petitioner and Appellant, v. WILMONT ARGEN ODOM, III, Objector and Respondent.
George M. Halimi for Petitioner and Appellant. Thomasina M. Reed for Objector and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BP081731) APPEAL from a judgment of the Superior Court for Los Angeles County, Maria E. Stratton and Michael Small, Judges. Affirmed. George M. Halimi for Petitioner and Appellant. Thomasina M. Reed for Objector and Respondent.
Joyce Sceau filed a Probate Code section 850 petition (section 850 petition) to determine the ownership of property in the estate of Wilmont Argen Odom, Jr. She subsequently entered into a settlement agreement with the administrators of the estate and, more than a decade later, filed a petition under Code of Civil Procedure section 664.6 (section 664.6) to approve the settlement agreement and enter judgment pursuant to its terms. The probate court denied the section 664.6 petition and placed the section 850 petition back on calendar for trial (the court had taken it off calendar when it was informed of the settlement). The probate court later dismissed the section 850 petition on its own motion under Code of Civil Procedure sections 583.310 and 583.360 (sometimes referred to as the five-year statute) on the ground that Sceau failed to bring the matter to trial within five years of its filing.
Sceau appeals, challenging the denial of her section 664.6 petition and the dismissal of her section 850 petition. We conclude the probate court did not abuse its discretion in denying the section 664.6 petition, because the settlement agreement had not been approved by the probate court, as required by its terms, and it included a term stating that the court "shall" retain jurisdiction to enforce its terms. We also conclude that the probate court did not err by dismissing the section 850 petition for failure to bring the matter to trial within five years of its filing because the five-year statute was not tolled by the unapproved settlement agreement. Accordingly, we affirm the judgment.
BACKGROUND
Wilmont Argen Odom, Jr. (decedent) died in September 2003. Probate proceeding were initiated on September 29, 2003, when Wilmont Argen Odom, III filed a petition for letters of administration. The probate court appointed him personal representative on February 23, 2004 and issued letters of administration the following day.
The probate court also appointed Tiffany Odom personal representative and issued letters of administration for her on that same dates; she subsequently was removed as co-administrator.
On March 30, 2004, Sceau filed her section 850 petition. The petition asserted two claims.
First, Sceau asserted that certain real property (referred to as the Rose Property), which was included as an asset of decedent's estate, actually belonged to her. She alleged that decedent purchased the Rose Property in his name as trustee for her; it was purchased in decedent's name for the purpose of qualifying for financing. The petition alleged that Sceau paid the down payment and all fees for the purchase, paid all taxes and mortgage payments as of the date of the purchase, and was fully responsible for the upkeep and rental of the units on the Rose Property. Sceau asked the probate court to determine that she was the true owner of the Rose Property, to authorize the administrators to transfer the Rose Property to her, and to impose a constructive trust on the Rose Property on her behalf.
Second, Sceau asserted that she gave decedent the sum of $121,000 on June 30, 2003, for the purpose of purchasing real property referred to as the Palmwood Property. She alleged that decedent was to purchase the Palmwood Property in his name as trustee for her, again for the purpose of qualifying for financing. She alleged, on information and belief, that $15,000 was paid into escrow on June 30, 2003 for the purchase, but the escrow was cancelled due to decedent's failure to close escrow in a timely manner. She asked the probate court to determine that she was the true owner of the $121,000 held by the administrators, and to authorize and direct the administrators to transfer that sum to her.
The administrators objected to the petition. They asserted that title to the Rose Property was taken in decedent's name, and not as trustee for Sceau, and therefore it was his sole property. With regard to the Palmwood Property, the administrators asserted that there was no record in decedent's papers that Sceau gave decedent any funds associated with that property.
In October 2006, Sceau and the administrators entered into a settlement agreement regarding the section 850 petition. Under the agreement the parties stipulated that, as of September 6, 2003, Sceau and decedent's estate each had a 50 percent ownership of the Rose Property; the parties agreed to seek an order from the probate court confirming this ownership. The parties also agreed that the Rose Property would be sold (the agreement set forth various terms regarding that sale), and that upon the sale, the net proceeds would be divided evenly between the estate and Sceau. The agreement also included various other terms, including terms related to how the sales price would be determined, as well as provisions stating that the agreement was "subject to approval by the Probate Court," and that the agreement "shall be enforced by the Probate Court in accordance with CCP 664.6, which shall retain jurisdiction to enforce its terms."
On October 23, 2006, the parties informed the probate court that the section 850 petition had been settled, and the court took the matter off calendar. There is no indication that the settlement agreement was submitted to the probate court for approval at that time.
In accordance with the settlement agreement, the Rose Property was listed for sale; it was not sold, however, until March 6, 2012, almost six years after the parties entered into the agreement. Sceau asserts the administrator breached the settlement agreement by failing to comply with various terms with regard to the sale, including giving her share of the proceeds of the sale.
Five and a half years later, on September 5, 2017, Sceau filed a petition in the probate court for breach of the settlement agreement, enforcement of the settlement agreement, an accounting, and damages. That petition was denied without prejudice on the ground that the probate court had not retained jurisdiction to enforce the agreement under section 664.6.
The documents related to this petition are not included in the record on appeal; our discussion is based upon Sceau's written response to the motion to dismiss her section 850 petition.
On March 28, 2018, Sceau brought the section 664.6 petition at issue in this appeal. The petition stated that Sceau sought "approval of [the] settlement agreement . . . a judgment pursuant to the settlement agreement, and for the Court to retain jurisdiction over the case and the parties to enforce the terms of the settlement agreement." The petition provided few details regarding the dispute, the agreement, or the events that occurred after the agreement was executed; the petition simply attached a copy of the settlement agreement and incorporated its terms by reference.
The probate court (Judge Maria E. Stratton, presiding) denied the petition. The court acknowledged that the settlement agreement provided that the court was to retain jurisdiction, but stated that the agreement did not meet the requirements of section 664.6, so it would not approve the agreement. In response to Sceau's counsel's statement that Sceau was only asking the court to approve the settlement agreement (rather than to enter judgment and enforce it), the court explained, "the settlement agreement asks the court to retain jurisdiction and it does not meet the statute, so I'm not approving the settlement agreement in its current form. [¶] If you want to redraft it, take that out, you can do that, but I'm not approving it because of that." In light of the court's denial of approval of the settlement agreement, the court ordered the underlying section 850 petition placed back on calendar for a trial setting conference.
Then-Judge Stratton presided over the hearing on the section 664.6 petition (which was held on July 24, 2018) and made the ruling orally. Counsel for the administrators' surety, American Contractors Indemnity Company (ACIC), stated at the hearing that she would submit the written order. That order was not signed until September 17, 2018, by which time Judge Michael Small had taken over the case.
Two days after the hearing on Sceau's section 664.6 petition, administrators' surety ACIC filed a motion to dismiss the section 850 petition under Code of Civil Procedure section 583.310 for failure to bring the matter to trial within five years. Sceau opposed the motion on several grounds, including that ACIC did not have standing to bring it because it was not a defendant. At the hearing on the motion, on October 9, 2018, the probate court (Judge Michael Small, presiding) took the matter under submission. On October 22, 2018, the court issued a written ruling setting forth its tentative decision to deny ACIC's motion for lack of standing, but to dismiss Sceau's section 850 petition on its own motion under Code of Civil Procedure sections 583.310 and 583.360 on the ground that Sceau failed to bring the matter to trial within five years of filing.
In its detailed tentative decision, the probate court noted that the section 850 petition had been filed on March 30, 2004, but had been off calendar for nearly 12 years due to the October 23, 2006 settlement agreement that purportedly resolved the issues in the petition. The court found that the execution of that settlement agreement tolled the running of the five-year clock until a reasonable period after the agreement was alleged to have been breached, to give Sceau an opportunity to seek redress, which reasonable period the court determined was no longer than 32 months. Since Sceau alleged the agreement was breached on March 6, 2012 (when the Rose Property was sold and Sceau did not receive her share of the net proceeds), the court found that the five-year statute was tolled until November 6, 2014. Thus, by the time of the hearing on ACIC's motion to dismiss the section 850 petition, and disregarding the time during which the statute was tolled, more than six years had elapsed since the action was commenced: 31 months from March 30, 2004 to October 23, 2006, plus 47 months from November 6, 2014 to October 9, 2018, for a total of 78 months (i.e., 6 years and six months). The court provided the parties an opportunity to file objections to or comments on its tentative decision.
Sceau filed a response to the court's tentative decision, arguing that (1) the court erred by refusing to enter a judgment pursuant to the settlement agreement; (2) the settlement agreement was enforceable by an independent breach of contract action; and (3) the statute of limitations applicable to Sceau's claim was tolled under Probate Code section 9352 during the administration of the estate, which had not yet been concluded. The court found that Sceau's first argument merely rehashed the arguments she made in prior pleadings to enforce the settlement agreement, and declined to revisit them. With regard to Sceau's second argument, the court noted that Sceau might be correct that the settlement agreement was enforceable by an independent action, but that had no bearing on whether the section 850 petition should be dismissed under the five-year statute. Finally, the court found that Sceau's third argument was mistaken in several respects, particularly her assertion that Probate Code section 9352 applied; the court concluded that that provision applied to claims or petitions to file late claims, and the section 850 petition was neither a claim nor a petition to file a late claim.
The probate court adopted its tentative decision as its final decision, and dismissed Sceau's section 850 petition. Sceau timely filed a notice of appeal from the dismissal.
DISCUSSION
A. Denial of the 664.6 Petition
Sceau argues that the settlement agreement is a valid contract, and that the probate court erred by refusing to enforce the agreement or to enter it as a judgment under section 664.6. We find no merit in Sceau's arguments regarding the probate court's denial of her section 664.6 petition.
We begin with the standard of review, which Sceau contends is de novo. She is mistaken. Section 664.6 provides: "If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement." (Italics added.) "The ordinary import of 'may' is a grant of discretion." (In re Richard E. (1978) 21 Cal.3d 349, 354.) Thus, a court's decision declining to enter judgment pursuant to the terms of the settlement or to retain jurisdiction is reviewed for an abuse of that discretion.
We find no abuse of discretion in the present case. The probate court stated it denied Sceau's section 664.6 petition because the agreement did not meet the requirements of that statute. While the court did not specify exactly what the defect was, it pointed to the provision regarding the court retaining jurisdiction to enforce the terms of the agreement, and said it would not approve the agreement unless it was redrafted. It appears the court may have objected to the language of that provision—"the settlement shall be enforced by the Probate Court in accordance with CCP 664.6, which shall retain jurisdiction to enforce its terms" (italics added)—because it is contrary to section 664.6, which gives the court discretion to retain jurisdiction to enforce a settlement agreement entered as a judgment. We conclude the probate court did not abuse its discretion by declining to approve the agreement in light of this language.
In any event, we find there was no abuse of discretion due to the circumstances under which the section 664.6 petition was presented to the probate court. Under the settlement agreement, Sceau agreed to release her claims against the estate in exchange for a one-half interest in the Rose Property, which the parties agreed to sell, governed by specific terms. Despite provisions requiring the parties to obtain orders from the court confirming the co-ownership of the Rose Property and confirming the sale price, as well as a term providing that the entire agreement was subject to approval by the probate court, no such orders or approval were sought until six years after the Rose Property was sold and eleven and a half years after the agreement had been signed. Thus, the probate court was asked to approve and enforce an agreement that no longer could be enforced because the subject of the agreement—the sale of the Rose Property—already had been accomplished. It did not abuse its discretion by denying Sceau's section 664.6 petition so long after that sale. B. Dismissal of the Section 850 Petition
As noted, the probate court on its own motion dismissed Sceau's section 850 petition under Code of Civil Procedure sections 583.310 and 583.360. Sceau contends the probate court erred by dismissing her section 850 petition because (1) the five-year statute does not apply to cases that have been settled; and (2) the five-year statute was tolled under Probate Code section 9352. Sceau's arguments fail under the facts presented here.
Code of Civil Procedure sections 583.310 provides: "An action shall be brought to trial within five years after the action is commenced against the defendant." Code of Civil Procedure section 583.360 provides: "(a) An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article. [¶] (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute."
1. Effect of Settlement Agreement
Sceau raises four arguments related to the effect of the settlement agreement in support of her contention that the trial court erred in dismissing the section 850 petition. First, relying upon the "leading case" of Malouf Bros. v. Dixon (1991) 230 Cal.App.3d 280 (Malouf), Sceau argues that the five-year statute does not apply to cases that have been settled. Second, citing Code of Civil Procedure section 583.130, she argues the petition should not have been dismissed due to the administrators' failure to cooperate in their performance under the settlement agreement. Third, she argues the parties, by the settlement agreement, stipulated to extend the time to bring the matter to trial, citing Code of Civil Procedure section 583.330. Finally, she cites to Code of Civil Procedure section 583.340 to argue that the time to bring the case to trial was extended when the probate court took the trial setting conference off calendar after the parties announced their settlement, thus making it impossible, impracticable, or futile to bring the matter to trial. None of her arguments prevail.
a. Applicability of Malouf and Similar Cases
After section 664.6 was enacted, courts were faced with situations in which parties sought to enforce settlements under that statute more than five years after the underlying action had commenced. In 1985, the first two published opinions arising from these situations were issued. One, Gorman v. Holte (1985) 164 Cal.App.3d 984 (Gorman), held that the five-year statute was irrelevant to a motion to enforce a settlement agreement, because the purpose of that statute is to prevent delay in bringing an action to trial and obtaining resolution of the dispute, but when the parties settle, there will be no trial. (Id. at p. 987.) The other, Varwig v. Leider (1985) 171 Cal.App.3d 312 (Varwig), disagreed with the Gorman court's holding. Instead, the Varwig court held that if a lawsuit is not brought before the trier of fact or if judgment is not entered on the settlement agreement within five years of the filing of the action, the five-year statute will apply. The court reasoned that by enacting the five-year statute, the Legislature expressed its desire to have litigation resolved in a reasonably expeditious manner, and this expressed desire "would be defeated if a lawsuit must remain pending before the trial court when the parties have reached a compromise agreement but have chosen not to enter judgment on it in a timely fashion." (Varwig, supra, 171 Cal.App.3d at p. 316.)
Subsequent courts faced with this issue, including Malouf, supra, 230 Cal.App.3d 280, the case cited by Sceau, disagreed with Varwig. (See Canal Street, Ltd. v. Sorich (2000) 77 Cal.App.4th 602, 608 (Canal Street), and cases cited therein.) As summarized by the court in Canal Street, "[t]hese cases [(including Malouf)] uniformly agree that once there has been a settlement in open court, the court can reasonably assume the matter has been finally disposed of and will not go to trial, even though details of execution may remain; consequently, there is no compelling reason a settlement agreement must be reduced to judgment within five years." (Ibid.) The Canal Street court also noted that after Varwig was decided, the five-year statute was amended to "incorporate what had been simply a judicially created exception to the mandatory five-year dismissal. The computation of the five-year period now specifically excludes the time during which bringing the action to trial was impossible, impracticable, or futile. ([Code Civ. Proc.,] § 583.340, subd. (c).) . . . [Thus,] the time during which a settlement agreement is in effect tolls the five-year period, for the reason that attempting to bring an action to trial when all issues have been resolved through settlement would be futile." (Canal Street, supra, 77 Cal.App.4th at p. 608.)
We do not disagree with Canal Street and the cases it cites with approval. But those cases do not assist Sceau because there is a key distinction between the settlement agreements in those cases and the settlement agreement here.
Unlike the settlement agreements in those cases, the settlement agreement in the present case provided that it was "subject to approval by the Probate Court." This term is critical to the agreement because the agreement involves the division of property held by decedent's estate, and the probate court has in rem jurisdiction over all property in the estate, with the responsibility to ensure that it is properly distributed. (Prob. Code, §§ 7050, 7001; Marsh v. Edelstein (1970) 9 Cal.App.3d 132, 142.) Thus, the parties could not determine by themselves what would be done with the Rose Property; only the probate court could make that determination. Therefore, the settlement agreement could not go into effect until the probate court approved it.
In this case, the settlement agreement never was approved by the probate court. Indeed, approval of the settlement agreement was not even sought for more than ten years. Hence, the settlement agreement never went into effect. And because the settlement never came into effect, it did not toll the five-year statute at all, other than, perhaps, for a reasonable period of time after the settlement was announced to the court, to allow the parties an opportunity to bring the agreement before the probate court for approval. (See Canal Street, supra, 77 Cal.App.4th at p. 608 ["the time during which a settlement agreement is in effect tolls the five-year period"], italics added.)
b. Administrators' Failure to Cooperate
Sceau argues that the administrators' failure to cooperate with her in bringing the action to trial or other disposition tolled the running of the five-year statute. In making this argument, Sceau relies upon Code of Civil Procedure section 583.130, which provides: "It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition. Except as otherwise provided by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter."
Sceau argues that the administrators failed to cooperate because the sale of the Rose Property "was made without any notice to Sceau and the Probate Court, and without court confirmation as required pursuant to the terms of the Settlement Agreement." But, as discussed in part B.1.a, ante, the settlement agreement never went into effect because it never was approved by the probate court, as required by its express terms. There is no evidence in the record that the administrators prevented Sceau from seeking the probate court's approval. Therefore, there was no basis for tolling the five-year statute.
c. Stipulation to Extend Time
Code of Civil Procedure section 583.330 provides: "The parties may extend the time within which an action must be brought to trial pursuant to this article by the following means: [¶] (a) By written stipulation. The stipulation need not be filed but, if it is not filed, the stipulation shall be brought to the attention of the court if relevant to a motion for dismissal. [¶] (b) By oral agreement made in open court, if entered in the minutes of the court or a transcript is made." Sceau argues that the probate court erred by dismissing her section 850 petition because the settlement agreement constituted a stipulation to extend the time within which the action was to be brought to trial. We disagree.
Even if the settlement agreement had been effective, it could not be construed as a stipulation to extend the time within which the matter must be brought to trial. "While the statute provides that the time may be extended by a 'stipulation in writing' between the parties, the cases hold that anything short of a written stipulation extending in express terms the time of trial beyond a five-year period will not suffice to toll the running of the statutory period." (Grafft v. Merrill Lynch, Pierce, Fenner & Beane (1969) 273 Cal.App.2d 379, 383.) The settlement agreement makes no mention of the five-year statute or the parties' intent to extend the time to bring the matter to trial. Rather, the agreement contemplates that there would be no trial at all. Thus, it cannot be construed as a stipulation under Code of Civil Procedure section 583.330.
d. Impossible, Impracticable, or Futile
Section 583.340 of the Code of Civil Procedure provides that when computing the five-year period within which an action must be brought to trial, certain time periods should be excluded, including periods during which "[b]ringing the action to trial . . . was impossible, impracticable, or futile." (Code Civ. Proc., § 583.340, subd. (c).) Sceau notes that the trial setting conference had been taken off calendar when the parties told the probate court that they had settled the matter. She contends that "[t]aking the trial setting conference off calendar by the Court had made it impossible, impracticable, and futile for bringing the action to trial." But there is nothing in the record to indicate that Sceau was in any way prevented from requesting that the probate court either approve the settlement agreement and enter judgment in accordance with its terms or (if approval was denied) set the matter for trial. In short, she failed to show that it was impossible, impracticable, or futile to bring the matter to trial within the five-year limit.
e. Conclusion
Because the parties' settlement agreement required approval by the probate court, and no such approval was sought for 10 years despite the absence of any impediment to seeking approval, we conclude the agreement did not toll or otherwise affect the running of the five-year statute.
2. Applicability of Probate Code Section 9352
Sceau contends that, regardless of the effect of the settlement agreement on the five-year statute, Probate Code section 9352 tolled the running of the statute during the administration of the estate. She is mistaken.
Probate Code section 9352 provides: "(a) The filing of a claim[,] or a petition under Section 9103 to file a claim[,] tolls the statute of limitations otherwise applicable to the claim until allowance, approval, or rejection. [¶] (b) The allowance or approval of a claim in whole or in part further tolls the statute of limitations during the administration of the estate as to the part allowed or approved." Even if this statute applied to toll the five-year statute—as opposed to the statute of limitations applicable to the cause of action giving rise to the liability at issue—it does not apply in this case because Sceau's section 850 petition did not constitute a "claim" under the Probate Code.
Probate Code section 9103 governs petitions brought by a creditor or the personal representative to allow a claim to be filed after expiration of the time for filing a claim. --------
Section 9000 of the Probate Code defines what a "claim" is and, more importantly for this case, what it is not. It states: "'Claim' does not include a dispute regarding title of a decedent to specific property alleged to be included in the decedent's estate." (Prob. Code, § 9000, subd. (b).) In her section 850 petition, Sceau alleged that both the Rose Property and $121,000 in funds to be used to purchase the Palmwood Property were included in decedent's estate but belonged to her. She asked the probate court to determine that she was the true owner of the Rose Property and the $121,000, and to direct the administrators to transfer them to her. In other words, Sceau filed a "dispute regarding title of a decedent to specific property alleged to be included in the decedent's estate" (id.) and not a "claim" as used in Probate Code section 9352. Therefore, the tolling provision of Probate Code section 9352 does not apply here.
3. Conclusion
As we have concluded, the five-year statute was not tolled by either the unapproved settlement agreement or Probate Code section 9352. Therefore, the entire period between the filing of Sceau's section 850 petition in March 2004 and the probate court's motion to dismiss in October 2018—less, perhaps, a reasonable period following the announcement of a settlement to allow one or both parties to obtain the approval of the probate court—must be counted when determining whether the five-year statute requires dismissal. Even if that "reasonable period" was determined to be four years, the un-tolled period was double that allowed under the five-year statute. Accordingly, we affirm the probate court's order dismissing Sceau's section 850 petition under the five-year statute for failure to bring the matter to trial within five years.
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DISPOSITION
The judgment is affirmed. Wilmont Argen Odom, III, as administrator of the estate of Wilmont Argen Odom, Jr., shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.