Opinion
G044938
02-07-2012
Estate of MONROE F. MARSH, Deceased JANE L. MARSH, Plaintiff and Appellant, v. STEPHEN D. MARSH, as Executor, etc., et al., Defendants and Respondents.
Law Office Michael A. Weiss and Michael A. Weiss for Plaintiff and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 30-2009-00331535; 30-2010-00384291)
OPINION
Appeal from four orders of the Superior Court of Orange County, Mary Fingal Schulte, Judge. Appeals from two orders dismissed; other two orders affirmed.
Law Office Michael A. Weiss and Michael A. Weiss for Plaintiff and Appellant.
Law Offices of Stephen M. Magro and Stephen M. Magro for Defendants and Respondents.
* * *
1. Introduction
When two people marry in California, the separate property which they each bring to the marriage does not automatically become community property, or property of a marital "partnership," even though California law does impose a "fiduciary relationship" of each of the spouses which is "subject to the same rights and duties of nonmarital business partners" as provided in three enumerated sections of the Corporations Code. (See Fam. Code, § 721.) The idea that "the "incorporation" of those sections of the Corporations Code "imposes on a spouse all the duties and obligations of an officer or a director of a corporation" has been explicitly repudiated in In re Marriage of Leni (2006) 144 Cal.App.4th 1087, 1092 (Lent). Moreover, the idea that the fiduciary relationship imposed on spouses automatically transforms all of their property into community or "partnership" property supposes nothing less than the wholesale repeal of the entire edifice of California marital property law as set forth in the Family Code. Accordingly, we affirm the dismissal of a separate civil action filed by appellant Jane Marsh (Jane) against the estate of her late husband, Monroe Marsh (Monroe), predicated on the idea that, upon their marriage, all of his separate property investments became either community or "partnership" property to which she succeeded upon his death.
2. Background
This appeal, docket number G044938, is the first of two companion appeals that have arisen in the litigation ensuing after Monroe's death in late November 2009. Broadly, this appeal (the "38 appeal") covers the litigation from Monroe's death through early March 2011. The other appeal, docket number G045474 (the "74 appeal"), covers the litigation through mid-summer 2011, including some pre-March 2011 matters not mentioned in the 38 appeal.
Here is the background necessary to understand the particular issues raised in the 38 appeal. In order to present a coherent, complete narrative, we have taken judicial notice of the record in the 74 appeal.
Monroe died November 22, 2009. At the time of his death Monroe was at least 92 years old. He had been a successful CPA and investor, and had a law degree from NYU. He had acquired a home at 51 Lakefront, Irvine in the early 1990's with his second wife Marjorie, who had died in late 2002. The Lakefront property was held by Monroe and Majorie in joint tenancy at the time of Marjorie's death. Thus, going into 2003, the home was Monroe's separate property.
In February 2003 Monroe married again, to Jane. At the time of the marriage Jane was 83. Monroe would have been at least 87 at the time.
Both Monroe and Jane had children. Monroe had an adopted son, Stephen Marsh (Stephen). Stephen has become a successful contractor and property manager. One of Stephen's children is Damon Marsh (Damon), who was named in Monroe's will along with Stephen as co-executor. Jane has a son, Michael Weiss (Michael). Michael is an attorney. Michael now represents his mother Jane in this litigation.
Monroe made his last will in 2007, about two years before his death. He had never placed Jane on title to the Lakefront home. Instead, his will specifically left Jane a right of occupancy in the property for the "balance of her life."
Monroe kept all the property which he owned at the time of his marriage to Jane in his own name until his death. Other than leaving Jane the right to occupy the Lakefront home for the balance of her life, Monroe's will leaves everything else to his son Stephen or to relatives on Stephen's side of the family.
In late December 2009 Stephen and Damon filed a petition for probate of the will and for letters testamentary. The petition created a probate case, docket number 30-2009-00331535. For convenience sake we will call this probate case the "1535 probate action."
Although title to the Lakefront property was in Monroe's name alone, on March 3, 2010, Jane recorded an "affidavit of surviving spouse" in which she claimed to "have full power to sell, lease, encumber and otherwise deal with" the Lakefront property based on certain "facts." Those facts included: (1) In October 2003, Monroe had taken out a reverse mortgage on the property as a "'widower.'" (2) Just after Monroe's death Jane paid off the $633,061 balance of the reverse mortgage "by way of exhaustion of [her] separate funds and a loan from [her] son." (3) Monroe never made any "meaningful disclosure" of the couple's community property. (4) Monroe constantly referred to the property as "our home." (4) Throughout the marriage Monroe "commingled" the couple's "community funds with his separate funds to such an extent" that it had become "impossible to trace." (5) During the marriage Monroe never paid Jane "any monies from the income Monroe earned by his labors." Based on those facts, Jane stated: "I therefore claim full ownership of the 51 Lakefront, Irvine property, and am recording a Homestead Declaration on it; and then dispose of it by conveyance to my son while reserving a life estate in it for myself." As promised in the affidavit, the next day Jane recorded a grant deed in which she purported to transfer the property to Michael.
In March 2010 there was a case management conference in the 1535 probate action. In her case management conference report, Jane asserted the legal theory that Monroe and Jane had a "marital partnership." Citing various provisions of the Corporations Code, Jane claimed to be the "surviving partner" of a partnership and, as such, was entitled to the entirety of Monroe's estate. She asserted that Monroe's estate was simply a matter of the "winding up of the partnership."
The "marital partnership" theory was also asserted in a separate civil suit filed by Jane in June 2010. A first amended complaint followed in July. For convenience sake we will call this civil case the "4291 civil action."
In August 2010, the 1535 probate action and the 4291 civil action were consolidated by Judge Schulte, who had been assigned the 1535 probate action. The order provided that the 1535 probate action would become the lead case. In October 2010, in the wake of a demurrer filed on behalf of Stephen and Damon, Judge Schulte ordered the 4291 civil action dismissed.
In December 2010, almost two months after the October dismissal, Jane filed a motion to set aside the dismissal order. That same month she also filed a will contest in the 1535 probate action. Again, she asserted a marital partnership theory that essentially claims that all of Monroe's property should go to her.
In January 2011 Judge Schulte denied Jane's request to set aside the October dismissal of the 4291 civil action. About six weeks later the court handed Jane another loss by sustaining a demurrer to her will contest without leave to amend.
The notice of appeal in this, the 38 appeal, was filed March 7, 2010. The 1535 probate action would continue through 2011. Many of the events subsequent to March 2011, including the disposition of Jane's second civil appeal, docket number 302010-00426209 (the "6209 civil action") are covered in the companion 74 appeal. The 38 appeal, which we now consider, centers on four of the various orders that had been made by the time of the March 7 notice of appeal.
3. The Nature of the Appeal
We are first required to determine the scope of our appellate jurisdiction. (Olson v. Cory (1983) 35 Cal.3d 390, 398 ["since the question of appealability goes to our jurisdiction, we are dutybound to consider it on our own motion"].)
The notice of appeal in this proceeding specifies four orders from which the appeal has been taken: (1) "the judgment of dismissal" of appellant Jane Marsh's First Amended Civil Complaint "entered 10-14-10 after sustaining Demurrer Without Leave To Amend (on 10-7-10)"; (2) the "Order Denying Motion to Vacate the Judgment of dismissal entered 1-20-11"; (3) the "Order sustaining Demurrer Without Leave to Amend a 1st Amended Will Contest entered 2-28-2011" and (4) the "Order Consolidating Actions of 8-12-10."
This court has already dismissed this appeal insofar as it relates to (3), the February 28, 2011 order sustaining the demurrer to the first amended will contest. Jane has not challenged our dismissal order in the California Supreme Court. That matter is now final.
The (4) August 12, 2010 order of consolidation had the effect of consolidating the 1535 probate action with the more recently filed 4291 civil action. We now also dismiss the appeal from that order. If an order consolidating two probate matters is not appealable (Estate of Wilson (1942) 55 Cal.App.2d 398 [order consolidating two probate matters in trial court not appealable]), it logically follows that an order consolidating a civil case with a probate case is also not appealable.
As to (1), the so-called "judgment" of dismissal allegedly "entered" on October 14, 2010, there is the threshold problem of ascertaining from what precisely Jane has taken this appeal. There is no "judgment" that was "entered" on October 14, 2010 in the Appellant's Appendix. However, it is evident from Jane's opening brief that what was meant in the notice of appeal was not a "judgment" as such, but the order dismissing the first amended complaint filed October 7, 2010. Indeed, it is obvious that the notice of appeal in this appeal really meant the order of dismissal filed October 7, 2010. The two items are substantively the same. They constitute a final adjudication of the merits of the 4291 civil action. Moreover, as is evident from the respondent's brief, Stephen and Damon have not been misled by the discrepancy. Under the rule of liberal construction of notices of appeal (Cal. Rules of Court, rule 8.100(a)(2)), we therefore construe the notice of appeal to be from the October 7, 2010 order of dismissal as distinct from the nonexistent "judgment" of October 14.
The next question is the timeliness of the appeal from the order of October 7, 2010. Notice of entry of the October 7, 2010 order was filed and served October 13, 2010. The notice of appeal, however, was filed March 7, 2011, which was considerably in excess of 60 days from the notice of entry. (See Cal. Rules of Court, rule 8.104(a)(2) [time to file notice of appeal expires 60 days after aggrieved party is served with a notice of entry of the judgment].)
The timeliness question turns on the effect of the December 10, 2010 motion to vacate the judgment. If considered as a traditional motion to vacate under sections 663 and 663a of the Code of Civil Procedure, this motion was not "valid," because section 663a of the Code of Civil Procedure requires a motion to vacate a judgment to be made within 15 days of service on the moving party of the notice of entry of judgment. Fifteen days from the date of the service of notice of entry of the order on October 13 expired by the end of October 2010.
In substance and form, however, Jane's motion to vacate was a motion pursuant to section 473 of the Code of Civil Procedure (a "473 motion") for relief from mistake, inadvertence, surprise or excusable neglect, not a motion under section 663 of the same code. Such 473 motions do operate to extend time to file a notice of appeal if made within the normal 60-day period within which an appeal might otherwise be taken. (Matera v. McLeod (2006) 145 Cal.App.4th 44, 56 [noting that rule allowing for extension of time to appeal applies "if a party serves and files a timely motion for relief from the judgment under section 473, subdivision (b)"]; see also In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 109 ["in order also to extend the time for filing a notice of appeal from the underlying judgment such a section 473 motion must be filed within the more limited parameters of rule 2; this is, within the normal . . . time period of 60 days from mailing or service of entry of judgment"].)
Still, one issue remains as to the October 7, 2010 dismissal order -- its appealability. The issue arises because of the August 2010 prior order consolidating the 1535 probate action with the 4291 civil action. By virtue of that consolidation, the October 7 order cannot really be considered the "final judgment" in the consolidated proceeding, since any number of appealable orders within the 1535 probate action would necessarily remain for the future. (Cf. In re Baycol Cases I and II (2011) 51 Cal.4th 751, 756 ["Under the one final judgment rule, „"an appeal may be taken only from the final judgment in an entire action."'"].)
The Probate Code, however, provides for a separate set of rules of appealability that operate independent of the rules which normally govern civil appeals. (See Code Civ. Proc., § 904.1, subd. (a)(10) [providing for the appealability of "an order" made otherwise "appealable by the provisions of the Probate Code]; see also Ross, Cal. Practice Guide: Probate (The Rutter Group 2011) \ 3:3, p. 3-1 (Rutter Probate Treatise) [probate "is a continuous proceeding" which "involves a series of stages, each of which may result in an appealable order or judgment"].) In evaluating the appealability of orders made by a probate court, appealability is determined by the substantive effect of an order, not its form. (Estate of Miramontes-Najera (2004) 118 Cal.App.4th 750, 755 ["An order is appealable, even if not mentioned in the Probate Code as appealable, if it has the same effect as an order the Probate Code expressly makes appealable."].)
Sections 1300 through 1304 of the Probate Code list the specific orders made by probate courts which are appealable. (See also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2011) ¶ 2:191, p. 2-107 [noting that with "rare exception . . . no appeal lies other than from the specified orders"].) Among the orders which Probate Code section 1303 makes appealable are orders determining entitlement to estate property. (Prob. Code, § 1303, subd. (f)).
Here, the 4291 civil action sought, in substance, to invalidate Monroe's will to the degree to which it left any property at all to anyone other than Jane. Jane had gone so far, for example, in her March 2010 case management conference report, to opine that upon the "winding up" of the "marital partnership," there might not even be a need to "open probate" at all.
The effect of the order of dismissal of October 7, 2010, then, was to determine that Jane had no entitlement to the remainder interest in the Lakefront real property, or the balance of Monroe's other property, real or personal. As such, the October 7 dismissal order is appealable under Probate Code section 1303, subdivision (f). We therefore address the merits of the dismissal of civil action 4291 below.
Finally, there is the fourth matter appealed from, namely the January 20, 2011 order denying the motion to vacate. The motion to vacate was aimed at setting aside the October 7, 2010 order dismissing the 4291 civil action. Obviously the March 7, 2011 notice of appeal was timely as to a January 20 order. The question was whether this order was also appealable under the Probate Code.
The complicating factor here is that the substantive effect of the January 20, 2011 order was not to directly adjudicate Jane's claims to Monroe's property based on the marital partnership theory, but to determine whether sufficient grounds were proffered to prompt the trial court to set aside its previous order which did adjudicate those claims. We have not been cited to any mention of orders made pursuant to set aside motions under Code of Civil Procedure section 473, or any substantive analog in the list of orders made appealable under sections 1300 through 1304 of the Probate Code. We have not found any on our own. Moreover, unlike the usual situation where an order denying a 473 motion necessarily is appealable as a postjudgment order under Code of Civil Procedure section 904.1, subdivision (a)(2), this 473 motion could not be said to really be an order after an otherwise appealable final judgment.
However, appellate courts have been known to treat appeals from denials of section 473 motions brought in cases of probate administration, albeit without analysis of their appealability. (E.g., Conservatorship of Buchenau (2011) 196 Cal.App.4th 1031, 1038-1040 [considering merits of 473 motion to set aside previous order allowing respondents to retain bid deposit]; Wagner v. Wagner (2008) 162 Cal.App.4th 249 [affirming denial of section 473 motion made by probate court because of inadequate record on appeal].) Moreover, the ultimate, if not immediate effect of the order of January 20, 2011, was to cement, at the trial court level, the substantive adjudication of the court that Jane (and now Michael, given the grant deed) had no claim to Monroe's property based on the partnership theory. As such it too was a "determination" of claims to the estate and thus appealable under Probate Code section 1303, subdivision (f). Accordingly we will also treat the January 20, 2011 denial of Jane's set aside motion on the merits.
4. The Merits of the Appeal
a. the October 7 order of dismissal
i. nature of the 4291 civil action
The October 7 order of dismissal was made after the court sustained a demurrer filed by Stephen and Damon to Jane's first amended complaint in the 4291 civil action. The main point of the demurrer was that the complaint was predicated on California partnership law which has no application to the facts at hand. We agree with the trial court's ruling.
Summarizing the first amended complaint is not easy. Conclusions of law are heaped on top of each other with a few statements of fact sprinkled in, larded with various contentions and deductions based on an assumed legal premise. (See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 [on appeal after sustained demurrer, the "court does not, however, assume the truth of contentions, deductions or conclusions of law"].) The complaint omits any attempt at proper identification of parties. On its face it attempts to sue a deceased person, not his estate or personal representative.
But crediting what facts do appear in the complaint, and assuming that the complaint might be amended to name Stephen and Damon as personal representatives of the estate of Monroe Marsh as well as personally, here is an attempt at a summary:
According to the complaint, "Plaintiff's marriage to Monroe Marsh was a civil contract (Family Code 300) which created a marital partnership relationship." The complaint refers to Monroe has having been "twice previously a marital partner," apparently referring to his two prior marriages. At the time of the marriage Monroe was carrying on a "business" as a "stock and land speculator." He worked "nearly 7 days a week devoting his labor to various businesses" including being executor for the estate of one Mary Ann McGuire, and worked as "a tax preparer and accountant." (His work for the McGuire estate was free, which itself is the subject of a claim of breach of marital fiduciary duty.) Upon the marriage the "spouses agreed to carry on as co-owners Monroe's prior business" as, among other things, "a stock trader, tax preparer, tax accountant and Estate Executor." Under this agreement, the "spouses could use their separate property as partnership assets to further the goal of the partnership in making money."
The partnership was evidenced by Monroe's giving Jane a "wedding ring and the keys to his dwellings in Irvine, California and Honolulu, Hawaii saying in part this is our home." Moreover, "[i]mmediately after marriage and until his death Monroe Marsh referred to the property as our home to plaintiff and others."
Monroe allegedly violated this partnership agreement in various ways: He took out a reverse mortgage on the 51 Lakefront property, stating his marital status as "'widower'" instead of "'married man.'" He kept all of his investments in his own name, including earnings on those investments. He used the proceeds of the reverse mortgage as his "sole working capital" and kept the proceeds of investments made with that capital in his own name. He "took over sole management and control of his earnings." He didn't charge for his work on the McGuire estate.
Just after Monroe's death, Monroe's son Stephen took all of Monroe's records from the family residence and Monroe's office in Playa del Rey. The taking of the records forms the basis of Jane's claims for personal liability against Stephen and Damon.
ii. probate litigation and marital property
The nature of the complaint in the 4291 civil action as well as the disjointed nature of the opening brief requires us to set forth some basic rules involving probate litigation and community property.
Strictly speaking, there is no separate "probate court" in California. Probate jurisdiction, rather, is vested in the Superior Court. (Prob. Code, § 7050; Rutter Probate Treatise, supra, ¶3:34, p. 3-11.) Of course, many superior courts have their own departments specializing in probate administration. (Rutter Probate Treatise, supra, ¶3:34, p. 3-11.) While "probate" historically meant the "narrow process of proving" a will to the court, its current meaning is the "court-supervised administration of a decedent's estate." (Id. at ¶ 3:1-3:2, p. 3-1.)
Probate administration is required for all property which the decedent held in his or her name alone. (Rutter Probate Treatise, supra, ¶¶3:1 through 3:4.1, pp. 3-1 through 3-2.) Probate Code section 7001 provides that a "decedent's property is subject to administration under this code, except as otherwise provided by law, and is subject to the rights of beneficiaries, creditors, and other persons as provided by law." (Italics added.)
As a court of general administration, superior courts administering a decedent's property are empowered to resolve competing claims over the decedent's property. (Estate of Heggstad (1993) 16 Cal.App.4th 943, 952 ["The probate court has general subject matter jurisdiction over the decedent's property and as such, it is empowered to resolve competing claims over the title to and distribution of the decedent's property."].) In that regard, all challenges to the validity of a will or administration of a decedent's estate "must be brought in probate proceedings." (Cabral v. Soares (2007) 157 Cal.App.4th 1234, 1240 (Cabral).)
On the topic of marital property in California, we first note that all property owned by a person "before marriage" as well as the "rents, issues, and profits" of that property, is separate property. (Fam. Code, § 770.) Moreover, as a general rule, income from separate property investments is separate property. (Hicks v. Hicks (1962) 211 Cal.App.2d 144, 152-153 ["As a general rule income from separate property investments, such as dividends upon shares of corporation stock, are separate property."]; see also Estate of Cudworth (1901) 133 Cal. 462, 468 ["In this case all of the income of the property was derived from rents, interest, and dividends, and was as wholly and purely separate property as was the real estate, the stocks, bonds, and notes from which it flowed."].
But the general rule is tempered by the exception that the "fruits" of community efforts applied to separate property investments are community property. (See Dekker, supra, 17 Cal.App.4th at p. 850 ["Income from separate property is separate, the intrinsic increase of separate property is separate, but the fruits of the community's expenditures of time, talent, and labor are community property."].) Thus when "community efforts increase the value of a separate property business," there is a need to allocate the profits between the intrinsic increase from the separate property investment and the increase attributable to community efforts. (Id. at p. 851.)
California courts have employed one of two ways of making the allocation. They either allocate a fair return to the separate property investment and apportion the rest of the increased value to the community (e.g., Pereira v. Pereira (1909) 156 Cal. 1) or they determine the reasonable value of the community services, allocate that amount to the community, and apportion the rest of the increased value to separate property. (See Dekker, supra, 17 Cal.App.4th at p. 853.) On the other hand, there is no need for allocation in the first place unless "more than minimal community effort" has been devoted to a separate property business. (Dekker, supra, 17 Cal.App.4th at p. 851.)
Finally a spouse has the unilateral power to will his or her separate property "without restriction." (Rutter Probate Treatise, supra, ¶4:7-4:8, p. 4-3, italics in original; see also Prob. Code, § 6101, subd. (a) ["A will may dispose of the following property: [¶] (a) The testator's separate property."].)
We now turn to how these basic rules play out in evaluating the order dismissing the 4291 civil action.
iii. application
The 4291 civil action is clearly untenable, both procedurally and substantively.
Procedurally, it represents a claim against Monroe's estate and therefore should have been brought under procedures prescribed in the Probate Code (e.g., Prob. Code § 850, subd. (a)(2)(C) [providing for claims where "the decedent died in possession of, or holding title to, real or personal property, and the property or some interest therein is claimed to belong to another"].) In Cabral, supra, 157 Cal.App.4th 1234, the appellate court held that the trial court correctly sustained a demurrer to an ex-wife's suit alleging that her ex-husband conspired with his sister and their mother to cut the ex-husband out of the mother's will so that the ex-wife would not be able to reach property otherwise destined for the ex-husband, because the suit was either an attack on the validity of deceased mother's will or an attempt to seek distribution of the mother's estate in contradiction of terms of the will. (Cabral, supra, 157 Cal.App.4th at pp. 1239-1240.) Either way it should have been the subject of a probate claim. As in Cabral, the 4291 civil action attempted to make claims against the estate of a deceased person by a separate civil action instead of the procedures prescribed in the Probate Code.
Substantively, the "partnership theory" represents a serious misreading of California family law. To be sure, section 300 of the Family Code describes marriage as a "civil contract." And California's system of community property does indeed see marriage as a "partnership where spouses devote their particular talents, energies, and resources to their common good." (Dekker, supra, 17 Cal.App.4th at pp. 850-851; see also Fam. Code, § 721.)
But just because marriage is a contract and viewed as a "partnership" does not mean that disputes over marital property are matters for ordinary civil litigation governed by partnership law or, more to the point, that spousal separate property automatically becomes "partnership property" to which a surviving spouse succeeds upon the death of a partner. Jane's papers, written by her lawyer son Michael, however, are unabashed in arguing that the basic rules of family and probate law do not apply. Indeed, as Michael made clear at oral argument in this court, his theory is, in essence, that Family Code section 721 effectuated the wholesale repeal of California's law of community and separate property.
Leni has already dealt with a variation of Michael's argument. There, a husband asserted that a wife's refusal to sell a community property house directly to her husband (as distinct from a third party) at a time when they were contemplating divorce constituted a breach of fiduciary duty under Family Code section 721. The trial court ruled there was no such fiduciary duty and the Leni court agreed.
The Leni court explained that the reference to three Corporations Code sections (Corp. Code, §§ 16403, 16404, and 16503) in Family Code section 721 shows that spouses have a right to "access, information and an accounting" (of community property), but the statute does not broaden "a spouse's duties and obligations to include those of officers and directors of a corporation beyond" providing access, information and an accounting of community property. (Leni, supra, 144 Cal.App.4th at pp. 10921093.) The court said that the "notion" the "incorporation" of the three sections of the Corporations Code in Family Code section 721 "imposes on a spouse all the duties and obligations of an officer or director of a corporation" was "far-fetched."
The Leni court, in fact, went on to explicitly reject the essence of what would turn out to be Michael's theory in the case before us: namely, that Family Code section 721 had turned family law into partnership law. We quote the relevant passage: "Relying on In re Marriage of Duffy (2001) 91 Cal.App.4th 923 (Duffy),Husband claims, 'Family law proceedings look to California Corporate law for the substantive rules of fiduciary duties.' . . . With corporate law as his platform, he leaps to the conclusion that the sale of the house constituted a 'corporate opportunity,' and pursuant to the corporate opportunity doctrine, Wife was obligated to give him the right of first refusal on the house. . . . [¶] Duffy, supra, 91 Cal.App.4th 923 does not stand for the wholesale proposition suggested by Husband that the fiduciary duties of spouses are defined in the Corporations Code. The court in Duffy discussed the sections of the Corporations Code expressly identified in Family Code section 721, subdivision (b). We reject Husband's attempt to read far more into the case and the statute than either the court or the Legislature could have possibly intended." (Leni, supra, 144 Cal.App.4th at pp. 1093-1094, italics added, footnote omitted.) While Leni features prominently in the respondent's brief, the reply brief ignores it.
In the case before us, Michael proffers a theory even more far-fetched than that proffered by the husband in Leni. His theory amounts to nothing less than the idea that the enactment of Family Code section 721 abolished more than a century of California case law concerning the nature and tracing of separate property, as well as impliedly repealed those sections of the Family Code defining separate property (see Fam. Code, § 770) and requiring a written agreement to transmute that separate property into something else (see Fam. Code, §§ 850-852). We note, in this regard, that the other Family Code statute upon which Michael places emphasis, section 1100, explicitly refers to community assets and does not mention separate property.
Michael's theory is also contrary to this court's holding in d'Elia v. d'Elia (1997) 58 Cal.App.4th 415 (d'Elia).There, applying a rule of looking to the substance of the transaction -- a division of property in a divorce case -- we likewise rejected the idea that "family-law-imposed duties of disclosure" found in the Family Code meant that a division of community property stock pursuant to a marital dissolution could result in cause of action for securities fraud. (See id. at p. 419.) As the Leni court nicely summarized our d'Elia opinion, "it would be both inappropriate and unwise to enlarge a family law claim under the Family Code to include business rights and responsibilities of an entirely different nature." (Leni, supra, 144 Cal.App.4th at p. 1095.)
Jane's claims must therefore be tested under California family law, in the context of an administration of the probate of Monroe's estate. We need only add that, in terms of traditional California family law, Monroe properly segregated all the property which he brought with him to his 2003 marriage to Jane. His separate property is thus easily traceable. In fact, ironically one of Jane's loudest complaints is that Monroe kept his investments in his own name. Supposedly that segregation violated the alleged "partnership" agreement to pool previously separate assets.
Giving the complaint in the 4291 civil action the benefit of the doubt, at the absolute most Jane has alleged facts which might, if properly presented, have amounted to a claim against Monroe's estate for Jane's community half of the increase in Monroe's various separate investments based on a Pereira-Van Camp community efforts allocation theory. But even then, there is no claim that the trial court should have allowed an amendment to that effect. Nor does the opening brief make any such request. More importantly, any such Pereira-Van Camp claim would necessarily have to be brought under the procedures of probate administration, and not as a civil action. (See Cabral, supra, 157 Cal.App.4th 1234; see Prob. Code, § 850.)
By the same token, the claim that Stephen and Damon had no right to take Monroe's books and records from the Lakefront property following his death must fail. (Prob. Code, § 9650, subd. (a)(1) [personal representative of the estate "has the right to, and shall take possession and control of, all the property of the decedent to be administered in the decedent's estate"].)
Thus the dismissal of the 4291 civil action was correct. We express no opinion as to the subject or status of any claim by Jane for reimbursement from the estate for the $633,061 alleged to have been used by Jane to pay off the reverse mortgage. Even here, any such claim should have been made in the probate proceedings, not in a separate civil action.
b. the January 20 denial of the 473 motion
Like the complaint, the opening brief's argument to set aside the October 7 dismissal is not easy to follow. In fact, it is so hard to follow and so nonsensical on its face that we can only quote it verbatim from the opening brief. It defies paraphrase in logical terms: "That motion [the 473 motion] was accompanied by Declaration of her counsel attesting to his surprise, inadvertence, mistake and/or negligence and responsibility for the sustaining of the Demurrer by Judge Schulte [sitting in the Superior Court probate department] instead of Judge Banks as it should have been, based on counsels mis-assumption that Judge Dunning [then the presiding judge of the Superior Court] had ordered Judge Schulte to proceed."
The obvious question that arises is why Michael somehow was responsible for Judge Schulte's ruling on the demurrer given his "mis-assumption" (actually correct assumption) that Judge Schulte was the judge asked to "proceed" over the case. Given his own "mis-assumption," he knew it was necessary to oppose the demurrer in front of Judge Schulte.
Further, the theory that rule 3.300(h)(1)(C) of the California Rules of Court somehow deprived Judge Schulte of the jurisdiction to rule is nothing less than preposterous. The rule simply provides that when a probate case is related to another in a notice of related cases, the presiding judge of the Superior Court "must determine whether the cases should be ordered related and, if so, to which judge or department they should be assigned." On appeal, Jane has not carried her burden of demonstrating error by showing that the wrong judge adjudicated the matter.
The opening brief has not shown how Michael's "mis-understanding" somehow resulted in any prejudice. And as we have just shown, the 4291 civil action was untenable in any event.
5. Sanctions Against Michael
This court has already given Michael warning that it has considered sanctions against him for having filed both a frivolous appeal and an appeal for purposes of delay. (Cal. Rules of Court, rule 8.276.)
Preliminarily, we note that seldom has this court received as incoherent and disjointed a set of briefs as filed by Michael in both the 38 and 74 appeals. (See Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 166 ["plaintiffs' opening brief is 'repetitive, tangled and, at times, utterly incoherent'"].) We are forced to agree with the estate's characterization of his brief: "It is fitting that Attorney Weiss places a double space in between paragraphs of the Appellant's Brief, as each paragraph is an island unto itself with little connection to the preceding paragraphs or statements, [with] little logical cohesion. Such practice is unacceptable and places an undue burden on the Respondents to make sense of Attorney Weiss's nonsensical assertions and lack of structure."
Much of the incoherency is obviously due to Michael's failure to follow the California Rules of Court in regard to the contents of a brief. (See Cal. Rules of Court, rule 8.204(a).) Had he done so, he would have confronted the problem of the appealability of the various orders from which he has appealed. He might also have attempted to construct a coherent statement of facts instead of simply inserting a string of barely connected legal conclusions and case headnotes.
If Michael's hard-to-follow brief had only made more work for this court, we would be inclined to exercise our discretion to overlook it. Courts of Appeal review incomprehensible briefs all the time. (See Schmier v. Supreme Court (2000) 78 Cal.App.4th 703, 712 ["We have appeals from nonlawyers appearing in propria persona, filing incomprehensible briefs with no understanding of the rules of appellate review . . . ."].) We note he had, at oral argument in this court, the good grace to apologize for not following "the rules of writing" an appellate brief. Unfortunately, the incoherency of his briefs has also made unnecessary work for the estate, and has thus deprived the beneficiaries of Monroe's estate, by way of extra attorney fees, of property to which they are otherwise entitled.
Te essential frivolousness of the appeal also cannot be ignored. Michael's theory has the effect of repealing well-established rules of community and separate property by turning them on their head, so that Monroe's act of segregating his separate assets somehow becomes the basis of a fraud and breach of fiduciary duty claim. While laypersons like Jane might think that upon marrying they acquire one-half of all the property of their spouses, no reasonable California lawyer, required to know the rudiments of California community property law for the bar exam, would think that. (See Millennium Corporate Solutions v. Peckinpaugh (2005) 126 Cal.App.4th 352, 362 ["In short, no reasonable attorney would have taken this appeal, which is 'totally and completely without merit.'"].)
Michael was warned early in the litigation (by letter sent him in mid-June 2011, prior to the initial complaint filed in the 4291 civil action) by the attorney for Stephen and Damon that he was trying to advance a theory that amounted to nothing less than the wholesale circumvention of normal probate procedure. The warning contained the admonition that the estate would seek any damages caused by his "absurd and improper" actions. (No doubt such "absurd and improper" actions include preparing an affidavit for his mother claiming that she had "full power" to convey the Lakefront property to him when she was not on title at all.) Plainly, Michael has had plenty of time to reflect on the degree to which his partnership theory is at odds with the most fundamental principles of California marital property and probate law. By his own account he has spent "thousands" of hours researching his theory. As we said in d'Elia, there are "times" when "the absence of precedent ought to give lawyers" a "clue that they are on the wrong track." (d'Elia, supra, 58 Cal.App.4th at p. 428.)
There are additional facts concerning the frivolousness of Michael's theory which are more germane to the 74 appeal. They are discussed there.
6. Disposition
Insofar as this appeal purports to be from the order of consolidation filed August 12, 2010, or from the order sustaining the demurrer without leave to amend to the will contest, filed February 28, 2011, the appeal is dismissed. Insofar as this appeal is from the October 7, 2010 order of dismissal of the 4291 action and from the order denying the 473 motion to vacate the October 7, 2010 order or dismissal, both orders are affirmed.
As a matter of appellate sanctions, the court in the 1531 probate action is directed to take evidence from Stephen and Damon as to the full extent of the reasonable attorney fees which Michael's appeal in this, the 38 appeal, has effectively cost the estate. The trial court is also directed to assess that amount against Michael, and Michael only. There is nothing in the record to suggest that his aged mother should suffer, at least as a matter of sanctions, for her son's having filed a frivolous appeal.
Pursuant to Business and Professions Code section 6086.7, the clerk of this court is directed to forward a copy of this opinion to the State Bar upon return of the remittitur. The clerk shall also notify attorney Michael A. Weiss that this matter has been referred to the State Bar.
Respondents shall recover their costs on appeal.
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RYLAARSDAM, ACTING P. J.
WE CONCUR:
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O'LEARY, J.
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FYBEL, J.