Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. Nos. BP966539 and BP073345
ORDER MODIFYING OPINION AND DENYING REHEARING (NO CHANGE IN JUDGMENT)
THE COURT:
It is ordered that the opinion filed herein on October 24, 2007 be modified as follows:
1. On page 10, the heading following the number 1 is deleted and the following is inserted in its place:
The Probate Court’s Factual Findings Relating to Anne’s Removal as Special Trustee Are Final and Binding
2. On page 10, the third full paragraph beginning with “Although Anne timely appealed” and ending with “cf. In re Estate of Richards (1941) 17 Cal.2d 259, 267-268 [order approving exchange of real property, which had not been appealed, could not thereafter be challenged on appeal from decree settling the final account].)10” is deleted up to and including footnote 10 and the following is inserted in its place:
Although Anne timely appealed from the order removing her as special trustee, she did not properly raise in that first appeal her challenge to the trial court’s July 21, 2004 finding trust assets were utilized to consummate the GMS transaction. Accordingly, that finding, necessary to the court’s removal order, has become final; and Anne’s attempt to relitigate that issue in this subsequent appeal is barred. (See Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1450, fn. 5 [“[t]he orders listed as appealable in the Probate Code must be challenged timely or they become final and binding”]; In re Matthew C. (1993) 6 Cal.4th 386, 393 [“[i]f an order is appealable, however, and no timely appeal is taken therefrom, the issues determined by the order are res judicata”]; Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1186 [“prior appealable order becomes ‘res judicata’ in the sense that it becomes binding in the same case if not appealed”].)
3. On page 11, the last sentence of the first new paragraph, beginning with “Because Anne failed” and ending on page 12 with “see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) [¶] 2:191:2, p. 2-105” is modified to read as follows:
Because Anne failed to properly seek appellate review of the findings regarding the GMS transaction at that time, she is barred from attempting to relitigate that issue finally resolved by the trial court in this subsequent appeal. (See, e.g., Lazzarone v. Bank of America (1986) 181 Cal.App.3d 581, 591 [trial court necessarily found Bank trustee had acted with “due care” when it approved intermediate accounting; that finding, which has since become final, is given “res judicata effect” in subsequent action by beneficiary challenging Bank’s due care].)
Anne spends a great deal of her appellate brief insisting the law of the case doctrine does not bar her challenge to the probate court’s factual finding that the GMS transaction involved trust assets because we did not reach the merits of that contention in the first appeal. (See generally Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491 [“‘The doctrine of “law of the case” deals with the effect of the first appellate decision on the subsequent retrial or appeal. The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case’”].) However, law of the case is not the obstacle to our review. The problem for Anne is that her time to appeal the findings underlying the appealable order removing her as special trustee has expired (Cal. Rule of Court, rule 8.104; Estate of Gilkison, supra, 65 Cal.App.4th at p. 1450, fn. 5); and the findings necessarily determined in the prior order are now final and binding (In re Matthew C., supra, 6 Cal.4th at p. 393).
There is no change in the judgment. Appellant’s petition for rehearing is denied.
PERLUSS, P. J., WOODS, J., ZELON, J.