Filed 4/21/20 Corrales v. Corrales CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

GARY WILLIAM CORRALES et al.,

Plaintiffs and Respondents,

v.

MANUEL CORRALES, JR.,

Defendant and Appellant.

D075507

(Super. Ct. No. 37-2011-00152636-PR-TR-CTL)

APPEAL from an order of the Superior Court of San Diego County, Julia Craig Kelety, Judge. Dismissed.

Wingert Grebing Brubaker & Juskie and Colin H. Walshok; and Manuel Corrales, Jr., in pro per., for Defendant and Appellant.

Baker, Olson, LeCroy & Danielian and Eric Olson for Plaintiffs and Respondents.

Manuel Corrales, Jr. (Corrales) and his sister Linda Petty were co-trustees of their deceased father’s trust. Their other siblings, Gary W. Corrales, Sandra C. Favila, and Pamela Hodges (Petitioners) petitioned for an order pursuant to Probate Code section 859, contending the co-trustees took trustee fees and attorney fees from the trust, in violation of court orders. In 2018, after a bench trial, the trial court found that Corrales wrongfully and in bad faith took over $8,000 from the trust and ordered him to pay double damages plus the amount taken (roughly $24,000.00) (the Section 859 Order), and subsequently awarded the Petitioners attorney fees and costs (the Attorney Fee Order).

In a prior appeal (Corrales v. Corrales et al. (D074346, app. dismissed Aug. 13, 2018)), Corrales appealed both the Section 859 Order and the Attorney Fee Order, but he then filed a notice of abandonment of the appeal. The abandonment effected a dismissal of the appeal and we closed the case as a result of the notice of abandonment.

Corrales subsequently appealed again from the Attorney Fee Order (Corrales v. Corrales et al. (D075024, app. dismissed Jan. 25, 2019)). We dismissed that appeal because, as discussed further post, it was barred by the abandonment and dismissal with prejudice of his prior appeal.

In January 2019, the trial court amended the Section 859 Order to reduce the damages from roughly $24,000.00 to roughly $16,000.00. Corrales now appeals from the amended order. However, rather than attacking the amendment, his arguments on appeal are directed only to the original Section 859 Order and Attorney Fee Order. He does not challenge the amended order, which only reduced the damages he was directed to pay. Petitioners contend, and we agree, that Corrales’s current attack on the Section 859 Order and Attorney Fee Order is foreclosed by the abandonment and dismissal of his initial appeal. We therefore dismiss the pending appeal.

BACKGROUND

We grant both parties’ unopposed requests for judicial notice of documents filed in the superior court and take judicial notice of prior appeals D074346 and D075507. (Evid. Code, § 452, subd. (d).)

Siblings Corrales and Petty were co-trustees of their father’s trust from the time of his death in 2010 until their removal by the court in December 2014. They were also beneficiaries under the trust. Shortly before the co-trustees were removed, in November 2014, Petitioners—also siblings and beneficiaries under the trust—filed a petition to recover “trustee fees,” “professional fees,” ” ‘reimbursements,’ ” and other payments the Petitioners claimed the co-trustees had wrongfully made to themselves from the trust accounts. Petitioners claimed the payments were made in contravention of prior court orders directing the co-trustees not to pay any further fees or make any trust distributions for trustee or attorney fees pending further order of the court. Petitioners contended the co-trustees’ flagrant disregard for the court orders was evidence of bad faith, supporting an award of double damages under section 859. Petitioners claimed the wrongful payments of trust money amounted to $39,716.85.

Shortly before Petitioners filed their petition, the co-trustees repaid the trust certain amounts they had previously paid themselves. The co-trustees each opposed the petition, contending the amounts repaid were not subject to recovery under sections 850 and 859, that Corrales was entitled to retain certain payments made for “costs and expenses,” and that Petitioners did not have standing to obtain the requested relief.

The matter proceeded to a bench trial. At the outset of trial, the parties and the court discussed that the proceeding was brought under sections 850 and 859, and discussed Petitioners’ burden thereunder. The trial court took judicial notice of two court orders: (1) a May 21, 2012 order directing the trust ” ‘not to pay any further attorney’s fees or trustees’ fees pending further order from the court’ “; and (2) a July 8, 2013 order that “no distributions shall be made to pay the trustee or attorney’s fees pending further order of the court.” Petitioners showed that trust accounting documents, filed in court, depicted payments made to Corrales after these dates for “trustee fees,” paralegal fees, and attorney fees. Petitioners introduced as evidence a declaration executed by Corrales and filed in the probate proceeding in November 2014 that swore, ” ‘As a trustee in this case I have not been paid any trustees fees.’ ” Petitioners argued this sworn statement was false and evidenced Corrales’s bad faith. Petitioners acknowledged Corrales’s partial repayment of trust funds in October 2014 but emphasized that Corrales had violated prior court orders, taken amounts characterized as trustee, paralegal, or attorney fees, and subsequently represented he had not taken any “trustee fees.”

At trial, Corrales argued relief was not available under section 850 because any trust funds that had been taken had previously been returned. He contended that any money he withheld did not constitute trustee fees or attorney fees (regardless of the labels in the accounting documents which contradicted this contention), and he further argued that he reasonably relied on the advice of former counsel to withhold litigation expenses. He also contended no funds were taken in bad faith. He acknowledged signing the declaration in November 2014 that stated he ” ‘[had] not been paid any trustees fees,’ ” but claimed this statement was accurate because he made it after returning payment to the trust, and with the belief that “whatever was taken was considered to be litigation expenses.”

During closing arguments, the trial court characterized Corrales’s statement in his declaration as plainly false.

After trial, the trial court found that the sums already repaid to the trust account were not subject to recovery under section 850. However, the trial court found that Corrales had taken from the trust and not repaid the sum of $8,309.80 in trustee and attorney fees, and further found that Corrales “took these amounts wrongfully and in bad faith.” The trial court ordered Corrales to pay double damages under section 859 totaling $16,619.60, and ordered him to repay the trust that amount plus the amount taken, for a total damages award of $24,929.40.

Petitioners’ counsel subsequently sought to recover over $40,000 in attorney fees associated with the pursuit of the section 859 award. The trial court agreed Petitioners were entitled to attorney fees, but concluded the amount sought was excessive compared to the actual damages recovered (just over $8,000), and awarded $8,000 in fees and $435 in costs.

Corrales appealed from the Section 859 Order; the appeal was docketed in this court as number D074346. Corrales subsequently filed an amended notice of appeal in D074346, purporting to appeal from the Section 859 Order and from the Attorney Fee Order. However, in August 2018, Corrales filed a notice of abandonment of appeal in case number D074346, using the judicial council form, and stating simply, “[A]ppellant hereby abandons the appeal . . . .” Because his abandonment of the appeal operated as a dismissal of the appeal (Conservatorship of Oliver (1961) 192 Cal.App.2d 832, 837 (Oliver)), we closed case number D074346 on August 13, 2018.

In October 2018, Corrales filed a new notice of appeal, purporting to appeal (again) from the Attorney Fee Order. The appeal was docketed in this court as number D075024. In an order dated January 25, 2019, we dismissed that appeal on the ground that Corrales had abandoned his prior appeal from the same matter, causing the appeal to be dismissed with prejudice, the effect of which constituted an affirmance of the prior “judgment.” We explained in our order:

“Under the Rules of Court, the abandonment effected a dismissal of the appeal and we therefore closed the case on August 13, 2018. (Cal. Rules of Court, rule 8.244, subd. (b)(1) [“Before the record is filed in the Court of Appeal, the appellant may serve and file in superior court an abandonment of the appeal or a stipulation to abandon the appeal. The filing effects a dismissal of the appeal and restores the superior court’s jurisdiction.”].) Pursuant to section 913 of the Code of Civil Procedure, “[t]he dismissal of an appeal shall be with prejudice to the right to file another appeal within the time permitted, unless the dismissal is expressly made without prejudice to another appeal.” (See also [Oliver, supra,] 192 Cal.App.2d [at p.] 837 [abandonment and dismissal of appeal constituted “an affirmance of the judgment” under predecessor statute to Code of Civil Procedure section 913, thus precluding subsequent appeal of the issues presented in the abandoned appeal]; Property Owners of Whispering Palms, Inc. v. Newport Pacific, Inc. (2005) 132 Cal.App.4th 666, 677 [(Property Owners)] [dismissal of first appeal requires dismissal of second appeal arising out of the same order or judgment].)

“Appellant’s abandonment of the earlier appeal effectuated a dismissal of the appeal and appellant never sought relief from that dismissal. Accordingly, the current appeal must be dismissed.”

On January 28, 2019, the trial court entered an order directing the clerk to amend the Section 859 Order to reflect that the total damages awarded pursuant to section 859 is $16,619.60 (double the actual damages, which the court had found to amount to $8,309.80) and striking that portion of the order adding the double damages amount to the amount taken. Otherwise, the minute order as amended is identical to the original Section 859 Order. As such, the amended order simply reduced the damages award against Corrales from $24,929.40 to $16,619.60.

Corrales now appeals from this amended order.

DISCUSSION

A. Legal Principles

Section 850 provides that “any interested person” may bring a petition pursuant to section 859 if “the trustee has a claim to real or personal property, . . . possession of which is held by another.” (§ 850, subd. (a)(3)(B).) Section 48, subdivision (a)(1) defines an “interested person” to include any of the following: “[a]n heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.” Section 859 provides: “If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to . . . a trust . . . , the person shall be liable for twice the value of the property recovered by an action under this part.” If property is recoverable under section 850 and the party who took the property acted in bad faith, a section 859 penalty may be imposed. (Estate of Young (2008) 160 Cal.App.4th 62, 89.) Section 859 is punitive in nature. (Id. at p. 88.) On appeal from a bench trial of a section 850 matter, we may not reweigh the evidence and are bound by the trial court’s credibility determinations. (Id. at p. 76.) Findings of fact are liberally construed to support the judgment. (Ibid.)

Orders issued under Probate Code sections 850 and 859 are appealable pursuant to Probate Code section 1300, subd. (k), and Code of Civil Procedure section 904.1, subd. (a)(10).

The Code of Civil Procedure sets forth the powers of the reviewing court and the matters reviewable:

“Upon an appeal pursuant to Section 904.1 or 904.2, the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party, including, on any appeal from the judgment, any order on motion for a new trial . . . . The provisions of this section do not authorize the reviewing court to review any decision or order from which an appeal might have been taken.” (Code Civ. Proc., § 906, italics added.)

An order which amends a prior, appealable order is challengeable on appeal only to the extent that it materially changes the prior order; otherwise, there would be no assurance of finality. (Chico Feminist Women’s Health Center v. Scully (1989) 208 Cal.App.3d 230, 251-253 (Chico Feminist); In re Janee J. (1999) 74 Cal.App.4th 198, 206 [an appeal from a later appealable order cannot attack orders for which the appeal time has passed].) “Whether a modification to a final decision or judgment restarts the statute of limitations for an appeal depends on whether the modification was substantial. [Citations.] Whether the modification was ‘substantial’ does not depend on whether it was clerical error . . . . Rather, the question is whether the modification ‘ “materially affected” ‘ the appealing party’s rights.” (Millview County Water District v. State Water Resources Control Board (2019) 32 Cal.App.5th 585, 595 (Millview County).)

B. Analysis

“[A]n appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment.” (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 (Ramirez).) There is no dispute the Section 859 Order, originally issued in February 2018, and the subsequently issued Attorney Fee Order, were appealable orders. (Prob. Code, § 1300, subd. (k).) Indeed, Corrales timely filed a notice of appeal from those orders. However, Corrales later abandoned that appeal, resulting in its dismissal. (Code Civ. Proc., § 913.) The dismissal of the appeal constituted “an affirmance of the judgment,” precluding subsequent appeal of the issues presented in the abandoned appeal. (Oliver, supra, 192 Cal.App.2d at p. 836.) Corrales is bound by the consequences which result from his abandonment of the appeal and the resulting dismissal. (Property Owners, supra, 132 Cal.App.4th at p. 677.) The time to appeal the trial court’s orders has long elapsed. (Cal. Rules of Court, rule 8.104.) Thus, the merits of the Section 859 Order and the Attorney Fee Order are not subject to attack in this appeal.

Despite Corrales’s abandonment of the prior appeal challenging the Section 859 Order and the Attorney Fee Order, and our subsequent dismissal of his appeal, Corrales’s arguments in this appeal are directed exclusively to the propriety of those same orders. Specifically, he contends (1) the orders were erroneous because the petition did not expressly reference section 850 and only referenced section 859, (2) the Petitioners, as beneficiaries, lacked standing to pursue relief under section 850 and could only have pursued relief under other statutory grounds, which they did not pursue, (3) the petition was procedurally defective, (4) he did not violate a prior court order, (5) his declaration was “not false” and “did not support a finding of ‘bad faith,’ ” (6) the trial court’s damages calculation was erroneous, and (7) the attorney fee award must be reversed.

Corrales cannot bootstrap to the present appeal arguments relating to the merits of the prior orders, which were not timely asserted in the prior (dismissed) appeal. (Code Civ. Proc., § 906; Chico Feminist, supra, 208 Cal.App.3d at p. 251 [“We perceive no reason why defendants should be able to use the order [amending the prior order] as an artificial springboard from which to launch an appeal that could have been taken earlier.”]; Ramirez, supra, 159 Cal.App.4th at p. 1421 [“an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment”].)

The entry of the amended order here does not reopen the matters decided in the original order to appellate scrutiny because the amendment was not “substantial,” i.e., it did not ” ‘materially affect[]’ ” Corrales’s appellate rights. (Millview County, supra, 32 Cal.App.5th at p. 595; see Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 508 (Dakota) [“[I]t is ultimately the parties’ ability to challenge the ruling that is key. The right we are concerned with materially affecting is the right to appeal.”].) Rather, the amendment only reduced the amount of damages. There were no changes to the trial court’s determination that Corrales was liable under section 859, and that damages were warranted as a result of his bad faith conduct. “Inasmuch as the amendment changed the amount of damages only and did not otherwise alter the bases for defendant’s appeal, defendant was required to appeal from the original judgment, not wait for the amended judgment.” (ECC Construction, Inc. v. Oak Park Calabasas Homeowners Assn. (2004) 122 Cal.App.4th 994, 1003, fn. 5, citing Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 743-744.) “[I]f a party can obtain the desired relief from a judgment before it is amended, he must act—appeal therefrom—within the time allowed after its entry.” (George v. Bekins Van & Storage Co. (1948) 83 Cal.App.2d 478, 481; Dakota, at p. 499 [defendant’s right to appeal not affected by an amendment that reduced damages award].) Because Corrales abandoned his prior appeal, and the reduction in damages did not restart a new appeal period, his present appeal is untimely and must be dismissed.

Even though the issue is dispositive, Corrales never mentions in his opening brief that he previously appealed the trial court’s section 859 and attorney fee orders, and then abandoned that appeal (in case D074346). He also omitted the fact that this court already rejected his second attempt to appeal the trial court’s orders (in case D075024)—specifically on the grounds that it was barred by the abandonment of his prior appeal and the resulting dismissal of that appeal with prejudice. After Petitioners pointed out this procedural history in their respondents’ brief, Corrales asserted in his reply that this court’s “prior dismissal of the appeal as untimely had nothing to do with the merits of the claims asserted.” Corrales again fails to address any of the authorities cited in this court’s January 2019 order dismissing his second appeal. At oral argument, Corrales’s counsel argued the reduction in damages amounted to a substantial change to the prior order, citing for support Sanchez v. Strickland (2011) 200 Cal.App.4th 758. In that case, the appellate court found that a 30 percent reduction in one plaintiff’s damages award, based on a “new legal ground,” amounted to “a modification materially affecting the rights of the parties,” and on that basis, the court permitted plaintiffs to appeal from the modified judgment. (Id. at pp. 764, 767.) Unlike the Sanchez plaintiff’s right of recovery, which was adversely affected, in this case the reduction in damages worked to Corrales’s benefit. We therefore conclude Sanchez is inapposite to the circumstances here. Because the relief Corrales now seeks through this appeal could have been pursued in his prior appeal, his failure to do so forecloses this subsequent attempt. (Dakota, supra, 192 Cal.App.4th at p. 509 [defendant’s right to appeal not affected by an amendment that reduced damages award].)

To summarize: Corrales’s notice abandoning his earlier appeal constitutes a dismissal with prejudice that, in effect, affirms the orders that were appealed. Based on that abandonment and dismissal, this court already rejected Corrales’s second attempt to appeal the same court orders. And we now reject Corrales’s third attempt to challenge those orders.

DISPOSITION

The appeal is dismissed. Respondents are entitled to their costs on appeal.

GUERRERO, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.