Filed 3/11/20 Basmajian v. Adelmann CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

RICHARD J. BASMAJIAN,

Plaintiff and Appellant,

v.

CARLA ADELMANN,

Defendant and Respondent.

B287883

(Los Angeles County

Super. Ct. No. LP006178)

APPEAL from an order of the Superior Court of Los Angeles County, Lesley C. Green, Judge. Affirmed.

Richard J. Basmajian, in pro. per, for Plaintiff and Appellant.

Beltran, Beltran, Smith and Patrick S. Smith for Defendant and Respondent.

_________________________

Appellant Richard Basmajian (Basmajian) and respondent Carla Adelmann (Adelmann) are brother and sister. Their father died in 1997, leaving an estate consisting of two pieces of real property, a promissory note, and various bank and brokerage accounts. The present appeal—the fifth between the parties—is from an order granting judgment on the pleadings on Basmajian’s petition to compel Adelmann to transfer an apartment building she received from the trust by court order in 2010.

As we discuss, all the issues raised in Basmajian’s petition were resolved by the probate court in a final order in 2010 from which Basmajian did not appeal. Because that order has long since become final, Basmajian’s petition is barred by res judicata. We therefore affirm the order granting judgment on the pleadings.

FACTUAL AND PROCEDURAL BACKGROUND

I.

Prior Proceedings

The following background facts are drawn from our earlier four opinions in this case. Basmajian, an attorney, and his sister, Adelmann, are the primary beneficiaries of a trust created in 1985 by their father, John Basmajian (decedent). At his death, decedent’s assets were worth approximately $1.4 million and consisted of the house where Adelmann lived, an apartment building, mutual funds, bank accounts, and a promissory note in the sum of $250,000. The trust provided that, after gifts to decedent’s two ex-wives, Adelmann was to receive the house, and Basmajian and Adelmann were to divide the remainder of the trust assets equally. The siblings were to be cotrustees.

With respect to the promissory note, decedent had loaned $250,000 to Basmajian, and Basmajian had executed a promissory note that provided for a 5 percent annual rate of interest beginning November 1, 1995. Basmajian used the money to purchase an interest in a banquet hall. He made no payments on the note during decedent’s life.

On December 1, 1997, decedent executed an amendment to the trust that made Basmajian the sole trustee. Decedent died two weeks later. After decedent’s death, Basmajian, as sole trustee, forgave himself the $250,000 loan.

Between 1998 and 2000, Adelmann filed petitions and requests seeking, among other things, to declare the trust amendment void based on undue influence, to have Basmajian removed as trustee, and to compel an accounting. Among the issues Adelmann raised in those filings was her concern that Basmajian either omitted the $250,000 promissory note from the list of trust assets or recharacterized the note as a gift.

In May 2000, the probate court submitted to a referee the question of whether the $250,000 note was a loan to Basmajian and part of the trust estate, or whether it was a gift. The referee found the $250,000 promissory note was a trust asset, and the probate court adopted the referee’s findings.

Basmajian appealed from that ruling, contending that the referee lacked authority to consider the characterization of the note. In our first opinion (case No. B146995), filed in July 2002, we affirmed the finding of the referee and ordered Basmajian to pay the costs of appeal personally.

While the first appeal was pending, the parties tried the question of whether the trust amendment was procured by undue influence. In December 2001, six months before we filed our first opinion, the probate court ruled that the amendment was the product of undue influence exerted on the decedent by Basmajian, and therefore was null and void. Basmajian filed a second appeal.

The probate court removed Basmajian as trustee in March 2002 and appointed a successor trustee. In June 2003, we filed our opinion in the second appeal (case No. B156908) affirming the probate court’s ruling that the trust amendment was the product of undue influence.

In our third opinion (case No. B191507), filed in October 2007, we reversed the probate court’s finding that Basmajian’s two prior appeals were contests in violation of the trust’s no-contest clause. In our fourth opinion (case No. B251475), filed in May 2015, we affirmed an order of the probate court denying Adelmann’s request to recover attorney fees.

II.

Transfer of the Hesby Street

Property to Adelmann

A. December 2009 Stipulated Order

In December 2009, the probate court (Judge Steele) entered an order (the December 2009 order), stipulated to by the parties, granting the trustee authority to transfer the apartment building owned by the trust (the Hesby property) to Basmajian or Adelmann, subject to the following procedures.

After the trustee obtained an appraisal of the Hesby property, Basmajian and Adelmann would have 15 days to make an offer to take title to the property. If either sibling agreed to take title, he or she would be required to demonstrate the financial ability to purchase the property at the property’s appraised value. If both siblings submitted qualifying offers, the court would hold a hearing to allow them to bid on the property. At the hearing, “the first bid shall be the appraised value plus 5% and $500.00, and the Court will thereafter take bids from the beneficiaries in increments of no less than $10,000.00,” with the property to be awarded to the highest bidder.

Once the high bidder obtained financing, the trustee would quitclaim the property to the high bidder and deposit the deed to the property into escrow. The deed would then be delivered to the high bidder “upon the high bidder’s deposit of the appropriate amount of cash into escrow and the closing of escrow.”

B. February 16, 2010 Hearing

Both Basmajian and Adelmann sought to purchase the Hesby property and submitted evidence of their ability to obtain loans for half the property’s appraised value. On February 16, 2010, they appeared before the probate court for the auction contemplated by the December 2009 order.

Before the auction began, Basmajian urged that Adelmann should not be permitted to bid because she had not demonstrated the ability to pay the full appraised value of the Hesby property. He explained that he understood the December 2009 order to require each bidder to demonstrate the ability to pay the property’s full appraised value—half with a loan, and half with cash—and he did not believe Adelmann could do so. The attorneys for Adelmann and the trustee disagreed with Basmajian’s understanding of the bidding requirements: They said that under the terms of the December 2009 order, since Basmajian and Adelmann each owned half of the Hesby property, they qualified to bid if they could demonstrate the financial ability to purchase the other half of the property.

After hearing argument, the probate court adopted the interpretation of the December 2009 order advocated by Adelmann and the trustee. The court then permitted both Adelmann and Basmajian to bid on the Hesby property. Adelmann made the highest bid, and the court awarded her the right to purchase the property for $1,510,000.

C. Subsequent Hearings and Orders

On June 9, 2010, the court heard the trustee’s application for instructions regarding the transfer of the Hesby property. According to the trustee, Adelmann believed she was entitled to acquire the property after depositing half the purchase price ($755,000) into escrow because the court’s prior order permitted her to offset the other half of the purchase price from her share of the estate; Basmajian disagreed, urging that Adelmann could not use her share of the estate as an offset. At the conclusion of the hearing, the court ordered the trustee to “abide by the outstanding Order regarding the purchase of the Hesby Street Property to permit successful consummation of the loan transaction and an expeditious closing of Escrow.” In so ordering, the court “specifically reject[ed] the suggestion of Mr. Richard Basmajian that a further accounting be ordered or performed, or that a determination [be made] of the amount of the beneficiaries’ respective interests, before first proceeding with the subject purchase.”

On June 28, 2010, Basmajian filed an ex parte application “to stop the close of escrow based on his . . . concerns that the close of escrow would result in an over-distribution of Trust assets to [Adelmann].” The probate court denied Basmajian’s application, stating: “The court has already generally considered the issues now being raised by Mr. Basmajian and although there can be no absolute certainty as to what may ultimately be determined regarding the various monetary claims including those being asserted by Mr. Basmajian, the court was nonetheless satisfied taking into account, among other things, the input received from [the trustee]. While it is possible the security may ultimately prove insufficient, in an effort to resolve the issues which have apparently been in the making for over a decade, the court addressed the issue concerning disposition of the apartment building and security pertaining to that transaction to the extent reasonably possible. The Ex Parte Application is therefore DENIED.”

In July 2010, Adelmann made a cash payment of $755,000 to the trustee, and the trustee transferred the Hesby Street property to Adelmann.

III.

Accountings

A. Trustee’s First Account (2011)

The trustee filed a first account on August 15, 2011. Among other things, the account stated: “Pursuant to court order the trust property located at 10920 Hesby Street, North Hollywood, California was distributed to Carla Adelmann on July 20, 2010 for a cash payment to the trust to equalize distribution in the amount of $755,000.00.” The probate court (Judge Steele) approved the trustee’s first account on December 23, 2011.

B. Trustee’s Second Account (2013)

The trustee filed a second account on August 7, 2013. It stated that Adelmann had received the Hesby Street property (half as a distribution from the trust), and Basmajian had received distributions of about $700,000 ($600,000 in cash, plus forgiveness of the $100,000 unpaid balance of his promissory note). The trustee therefore proposed to equalize the distribution by making an equalizing payment to Basmajian of about $60,000, and to distribute the remaining assets of the trustee equally between Adelmann and Basmajian after payment of trustee fees and costs of administration.

In December 2013, Basmajian filed a document asserting a variety of “ ‘clerical errors’ and ‘inequities’ ” that he contended precluded court approval of a final account and distribution. Among other things, Basmajian asserted as follows: “At the time Adelmann took title to the apartment building on July 20, 2010, she had been distributed substantially more money from the Trust than she was entitled to. . . . This was and is inequitable to [Basmajian] because the net result is that Adelmann bought the building using [Basmajian’s] money and has reaped substantial income from rents and substantial appreciation on the property over the last few years. The exact figure for this ‘over-distribution’ will depend on how this Court decides the issues raised in this document, but it is estimated to be around $250,000.00. For 3 1/2 years now, Adelmann has been using [Basmajian’s] money, denying him (or the Trustee on his behalf) the opportunity to invest same in the equity markets.” Basmajian proposed that he was entitled to an additional distribution from the trust to remedy the “ ‘over-distribution’ to Adelmann,” including a “ ‘return’ on the principal from July 10, 2010 to [the] present.”

In January 2014, the probate court (Judge Levanas) entered an order settling the second account.

C. Trustee’s Third Account (2016)

The trustee filed a third account on February 25, 2016. Basmajian filed objections to the trustee’s report, asserting, among other things, that he was entitled to a share of the “net profit and equity appreciation Adelmann gained from the apartment building after she took title to it” because she “misled this court by stating in essence that she was still to receive enough money from the trust to allow her to acquire said title, when in fact she was ‘short’ hundreds of thousands of dollars. Adelmann therefore utilized Basmajian’s money to acquire the apartment building, which provided substantial income and appreciation to Adelmann. Equity therefore demands that Adelmann turn over to Basmajian the profits she made using Basmajian’s money, as well as the equity appreciation she made using Basmajian’s money.”

On July 12, 2017, the probate court (Judge Green) conducted a hearing on the objections and issues related to the third account. Basmajian asked the court to consider, among other things, whether the Hesby Street property “was wrongfully or inappropriately or mistakenly caused to be deeded to Ms. Adelmann.” Although Basmajian conceded that the transfer had been pursuant to court order, he told the court that “somehow [Adelmann] got title to the property in violation of the court order.” He urged: “The [December 2009] order required payment of the full price in escrow and then the deed would be transferred. That’s how an escrow normally works, and that’s what was to happen. [¶] And so somehow . . . Ms. Adelmann was able to get the deed to the property with only paying half for the property. So, as a result, the accountings show she’s grossly over-distributed to. But the court order regarding the bidding clearly says if the . . . high bidder who purchases the property doesn’t pay the full price in the escrow, they forfeit their right to buy the property. [¶] So, she didn’t put her money in, but she was able to get title.”

The probate court declined to hear argument on Basmajian’s contention that the Hesby property should not have been transferred to Adelmann. It said: “[That issue] was fully litigated and . . . there were stipulations, there were orders, your arguments and objections were fully considered, and all of that was ruled on back in 2009 and 2010. . . . [T]he issues you’re raising now have been fully addressed at several hearings and in several orders. [¶] There was an order as to how the sale would be conducted. The sale was conducted according to the way Judge Steele understood that order and applied that order. [¶] The trustee came in later for authority to transfer the property and to sign off on the deed. You raised some of the issues that you’re raising now. Judge Steele overruled and/or accommodated those concerns. So all of these . . . issues were addressed back, again, in 2010. . . . We’re done with this issue.”

IV.

Section 850 Petition

On June 26, 2017, Basmajian filed a petition pursuant to Probate Code section 850 (section 850) to recover trust assets. The petition alleged that Adelmann “violated the [December 2009 order]” by “misrepresenting to the Court that she had sufficient funds to purchase the Hesby Property in its entirety,” but depositing only half of the purchase price into escrow. As a result, the petition alleged, the probate court “mistakenly permitted” Adelmann to purchase the Hesby Street property “with Trust assets that should have instead been distributed to [Basmajian].” Basmajian asked the court to order Adelmann to “return the Trust assets over-distributed to her, specifically by distributing the Hesby Property at its formerly appraised value to [Basmajian]” and to “impose a constructive Trust in favor of [Basmajian] or the Trust over the profits [Adelmann] has obtained from her ownership of the Hesby Property in the interim.”

Adelmann filed an answer to the petition and, subsequently, filed a motion for judgment on the pleadings. Adelmann asserted the petition failed to state a cause of action because it raised exclusively issues that had already been litigated and therefore were barred by res judicata, collateral estoppel, and law of the case. Alternatively, Adelmann urged that the petition amounted to an untimely motion for reconsideration and was a sham pleading designed to circumvent the court’s prior rulings.

Basmajian opposed the motion. He urged that the issues raised in the petition had not been previously adjudicated and, thus, that Adelmann’s motion should be denied.

The probate court heard the motion on December 5, 2017. It concluded that Basmajian’s petition was not barred by res judicata because “none of the 2010 orders appear to constitute a final decision regarding the property.” The court concluded, however, that Basmajian’s petition was “at heart” an “incredibly untimely” motion for reconsideration. The court acknowledged the December 9 order was ambiguous, stating that “[i]t is apparent, in hindsight, that the terms of the sale only make sense if the escrow did not close until after the final distribution of the property had occurred.” The court said, however, that it had addressed and resolved those ambiguities seven years earlier: “At three different hearings in June [2010]—June 09, June 21, and June 28—the Court seemed fully aware that, in fact, the transaction actually consisted of Adelmann providing $755,000 via a loan, in exchange for which the Trustee would ‘disburse’ an additional $755,000 to Adelmann, in the form of transferring title to the property for only half the agreed upon amount. Basmajian’s concerns in June never changed, and his briefs never failed to raise the issue, so it cannot be said that the Court was unaware of the problem. Faced with competing pressures—the parties and the Trustee all believed the transaction needed to be concluded, so that funds could be returned to the Trust, but none of them could agree on the way to achieve that goal without delaying the sale until after a final distribution of the Trust—the Court allowed Adelmann to purchase the property based on her estimate that she was already entitled to 50% of the value of the property. The Court, at that time, concluded that to be the only reasonable path forward. Basmajian has provided no new or different facts or law that would lead this Court to reach a different result.”

The court thus concluded that the section 850 petition “is in fact a motion for reconsideration in disguise”; in the alternative, it held the petition was barred by the doctrines of laches and mootness. It therefore granted the motion for judgment on the pleadings.

On January 26, 2018, Basmajian filed a timely notice of appeal of the December 5, 2017 order granting judgment on the pleadings.

DISCUSSION

Basmajian challenges the judgment on the pleadings on a variety of grounds. He urges that his substantive claim—that the Hesby property was wrongfully conveyed to Adelmann because she did not pay full price for it—has never been adjudicated, and thus that his section 850 petition was not barred by res judicata, was not an untimely motion for reconsideration, was not barred by laches, and was not moot.

We conclude that Basmajian’s petition is barred by res judicata. The sole issue raised in Basmajian’s petition—the propriety of the transfer of the Hesby property to Adelmann—was adjudicated by the probate court and resulted in an appealable order in 2010. Because Basmajian did not appeal from that order, it became final as to issues that were or could have been raised concerning the disposition of the trust property at issue. The probate court therefore properly granted judgment on the pleadings.

I.

Legal Principles

A. Appealability

Section 850 provides that a trustee or any “interested person” may file a petition for a court order “[w]here the trustee has a claim to real or personal property, title to or possession of which is held by another.” (§ 850, subd. (a)(3)(A), (B).) The section was intended to permit “a conveyance or transfer of property belonging to a decedent or a trust or another person under specified circumstances, to grant any appropriate relief to carry out the decedent’s [or settlor’s] intent, and to prevent looting of . . . estates.” (Dudek v. Dudek (2019) 34 Cal.App.5th 154, 170–171.) The statute thus “provides a mechanism for court determination of rights in property claimed to belong to a decedent or another person.” (Estate of Young (2008) 160 Cal.App.4th 62, 75.)

An order of the probate court adjudicating the merits of a section 850 claim is appealable pursuant to Probate Code section 1300. (See Estate of Redfield (2011) 193 Cal.App.4th 1526, 1534.) The order granting judgment as to Basmajian’s section 850 petition thus is properly before us.

B. Standard of Review

“Like a general demurrer, a motion for judgment on the pleadings tests the sufficiency of the complaint to state a cause of action. [Citation.] ‘The court must assume the truth of all factual allegations in the complaint, along with matters subject to judicial notice.’ [Citation.]” (Stockton Citizens for Sensible Planning v. City of Stockton (2012) 210 Cal.App.4th 1484, 1491.)

“ ‘ “ ‘A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action. [Citation.]’ ” ’ ” (York v. City of Los Angeles (2019) 33 Cal.App.5th 1178, 1193 (York).)

A motion for judgment on the pleadings is equivalent to a demurrer and is governed by the same de novo standard of review. (York, supra, 33 Cal.App.5th at p. 1193.) “ ‘The judgment is to be affirmed if it is proper on any lawful grounds raised in the motion, even if the trial court did not rely on those grounds.’ (DiPirro v. American Isuzu Motors, Inc. (2004) 119 Cal.App.4th 966, 972.)” (Colombo v. Kinkle, Rodiger & Spriggs (2019) 35 Cal.App.5th 407, 416 (Colombo).)

II.

The Section 850 Petition Was

Barred by Res Judicata

A. Legal Principles

“ ‘ “Res judicata prohibits the relitigation of claims and issues which have already been adjudicated in an earlier proceeding. The doctrine has two components. ‘ “In its primary aspect the doctrine of res judicata [or ‘claim preclusion’] operates as a bar to the maintenance of a second suit between the same parties on the same cause of action.” . . . The secondary aspect is “collateral estoppel” or “issue preclusion,” which does not bar a second action but “precludes a party to an action from relitigating in a second proceeding matters litigated and determined in a prior proceeding.” ’ ” ’ (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1563.)” (Murphy v. Murphy (2008) 164 Cal.App.4th 376, 398 (Murphy).)

Res judicata is based on the principle “that a litigant is only entitled to one bite at the apple. ‘ “The doctrine of res judicata, whether applied as a total bar to further litigation or as collateral estoppel, ‘rests upon the sound policy of limiting litigation by preventing a party who has had one fair adversary hearing on an issue from again drawing it into controversy and subjecting the other party to further expense in its reexamination.’ ” ’ (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 185.)” (Colombo, supra, 35 Cal.App.5th at p. 416.)

As relevant here, res judicata in its secondary aspect applies “ ‘ “(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” ’ [Citation.]” (Key v. Tyler (2019) 34 Cal.App.5th 505, 534 (Key).) The doctrine applies to final orders in proceedings under the Probate Code. (Ibid.; Lazzarone v. Bank of America (1986) 181 Cal.App.3d 581, 591; In re Estate of La Motta (1970) 7 Cal.App.3d 960, 966.)

B. The Probate Court’s 2010 Sale Order Was a Final Adjudication of an Identical Issue, Was Actually Litigated, and Was Necessarily Decided

The section 850 petition sought an order directing Adelmann to transfer to Basmajian or the trustee both the Hesby property and all profits Adelmann had earned on the property since 2010. The petition alleged Basmajian was entitled to this relief because Adelmann had paid only half the purchase price for the property, resulting in a violation of the December 2009 order and an overdistribution of trust assets to Adelmann.

As we discuss, Adelmann’s right to acquire the property in exchange for a $755,000 payment to the trustee was litigated before the probate court and resulted in a final order in February 2010 directing transfer of the Hesby property to Adelmann. Basmajian did not appeal from that order, which has long since become final. Accordingly, Basmajian’s section 850 petition, which sought to relitigate Adelmann’s right to acquire the Hesby property, is barred by res judicata.

1. Finality

The administration of a decedent’s estate involves a series of separate proceedings, each of which is intended to be final. (Meyer v. Meyer (2008) 162 Cal.App.4th 983, 992 (Meyer); Estate of Callnon (1969) 70 Cal.2d 150, 156 (Callnon).) Thus, unlike civil appeals, which generally are governed by the “one final judgment” rule (Wilson v. County of San Joaquin (2019) 38 Cal.App.5th 1, 7), appeals may be taken under the Probate Code from a variety of orders issued during the administration of a probate estate. (See Code Civ. Proc., § 904.1, subd. (a)(10) [providing for the appealability of “an order” made otherwise “appealable by the Probate Code”]; see also Ross, Cal. Practice Guide: Probate (The Rutter Group 2019) ¶ 3:3 (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”].)

Sections 1300 through 1304 list the specific orders made appealable by the Probate Code. As relevant here, those include orders “[i]nstructing the trustee” (Prob. Code, §§ 17200, subd. (b)(6), 1304, subd. (a)), and “[d]irecting, authorizing, approving, or confirming the sale, lease, encumbrance, grant of an option, purchase, conveyance, or exchange of property” (id., §1300, subd. (a)).

Appealability of an order made by a probate court is determined by the substantive effect of an order, not its form. (Estate of Miramontes–Najera (2004) 118 Cal.App.4th 750, 755; Estate of Martin (1999) 72 Cal.App.4th 1438, 1442; In re Estate of West (1912) 162 Cal. 352, 354 [“The question as affecting a right of appeal is not what the form of the order may be, but what is its legal effect.”].) “Each order and decree of a superior court exercising its probate function and acting within its jurisdiction is conclusive against collateral attack unless it is void on its face.” (Estate of Hart (1962) 204 Cal.App.2d 631, 632.) Thus, an erroneous probate decree “ ‘must be attacked by appeal and not collaterally. [Citations.] If not corrected by appeal an “erroneous decree . . . is as conclusive as a decree that contains no error.” ’ ” (Meyer, supra, 162 Cal.App.4th at p. 992.)

The probate court’s February 16, 2010 order found Adelmann to be the high bidder at the auction and directed the trustee to sell the Hesby property to Adelmann for the auction price of $1,510,000. It was appealable pursuant to Probate Code section 1304, subdivision (a), as an order “instructing the trustee,” and pursuant to Probate Code section 1300, subdivision (a), as an order directing the “sale” or “conveyance” of trust property. Because Basmajian did not timely challenge the February 16, 2010 order on appeal, it became “final and binding” when the time to appeal had expired. (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1450, fn. 5 [“The orders listed as appealable in the Probate Code must be challenged timely or they become final and binding. They may not be collaterally attacked in a subsequent appeal from the final order of distribution.”]; see also Estate of Reed (2017) 16 Cal.App.5th 1122, 1127 [“ ‘The orders listed as appealable in the Probate Code must be challenged timely or they become final and binding.’ . . . ‘The Rules of Court do not provide, once a judgment or appealable order has been entered, that the time to appeal can be restarted or extended by the filing of a subsequent judgment or appealable order making the same decision.’ ”].)

2. Identical Issue, Actually Litigated, and Necessarily Decided

The “identical issue” requirement is met when “identical factual allegations are at stake,” whether or not “ ‘the ultimate issues or dispositions are the same.” ’ (Lucido v. Superior Court (1990) 51 Cal.3d 335, 342 (Lucido).)” (Key, supra, 34 Cal.App.5th at p. 534; Murphy, supra, 164 Cal.App.4th at p. 400.) The “actually litigated” requirement is met “ ‘ “[w]hen an issue is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined . . . .” ’ (Barker v. Hull (1987) 191 Cal.App.3d 221, 226.)” (Murphy, at p. 400; see also Key, at p. 534.)

The February 16, 2010 order addressed the identical issue raised by the section 850 petition. There, as here, the issue before the court was whether Adelmann or Basmajian would be permitted to purchase the Hesby property from the trustee. The probate court decided that issue in Adelmann’s favor and ordered the trustee to transfer the property to Adelmann through an escrow account within 60 days. Thus, the issue raised by the section 850 petition is identical to the issue before the court on February 16, 2010.

The issue raised in Basmajian’s section 850 petition—that the Hesby property had been improperly conveyed to Adelmann because she paid the trustee only half the purchase price—was “actually litigated and necessarily decided” by the February 16 order. At the February 16 hearing, Basmajian argued that Adelmann should not be permitted to bid on the Hesby property because she had obtained a loan for only half the purchase price and she could not show she had “cash for the other amount.” He explained: “I thought the [December 2009 order] spelled out [that a bidder] must demonstrate his or her ability before bidding on the Hesby Street property to pay into escrow an amount of cash at least equal to one half of the high bid price. That’s the first part of it, one half cash, and loan funding in an amount to cover the remaining balance of the price. So there’s two [elements]—there’s cash, and there’s financing.” Basmajian further argued that although the order permitted a bidder to rely on his or her distribution from the estate for the cash portion, Adelmann would “not [be] getting enough cash from the estate to cover the one half . . . of the bid price.”

Adelmann’s counsel disagreed with Basmajian’s interpretation of the December 2009 order. He stated that each sibling already owned half the Hesby property by virtue of their interests in the estate, and thus “they have to come up with the other half to buy it.” Counsel explained: “It isn’t any different than in a divorce and you have a couple and they have a house, and . . . one of them or the other has to pay the other since they already own one half as community property. They have to pay the other half.”

After hearing further argument, the court stated that it read the December 9 order as Adelmann (and the trustee) did. The court said: “I don’t read [the order] the way you read it, Mr. Basmajian. So I guess I have the majority view here. And I’ve got to tell you, I don’t think that was what was intended by the parties. I don’t think that’s what it says.”

Basmajian contends that the February 2010 order does not preclude the section 850 petition because the only issue before the probate court in February 2010 was what Adelmann had to do in order to bid—not how much she had to put into escrow in order to purchase the property. We do not agree. The clear purpose of the December 2009 order’s requirement that Basmajian and Adelmann show proof of funds prior to bidding was to ensure that the high bidder would be able to consummate the purchase. In other words, to bid on the property, Basmajian and Adelmann had to demonstrate access to funds sufficient to acquire the property. As Basmajian himself argued at the February 16 hearing, “obviously we didn’t want someone bidding up the property when they don’t qualify or, you know, getting a high bid and then going months down the road and not being able to follow through with the purchase.” The discussion at the February 2010 hearing concerning Adelmann’s right to bid, therefore, was not merely procedural—it went to the heart of how much what Adelmann would have to pay the trustee to obtain the Hesby property.

Moreover, to the extent there was any ambiguity about what the court had ordered at the February 16 hearing—and, specifically, whether the court had ruled that Adelmann was entitled to take possession of the property upon depositing half the purchase price into escrow—that ambiguity was resolved at the June 9 and 28, 2010 hearings, where the issue was specifically addressed. On June 9, 2010, the trustee told the court that Adelmann “believes she is entitled to purchase the property after depositing $755,000.00, that she obtained from a loan, into escrow” because “she was entitled to offset the other $755,000.00 owed from her share of the estate.” Basmajian’s position “was that because Adelmann would receive less than $755,000.00 from the estate, she could not use that amount as an offset.” It is evident that the probate court believed Adelmann’s payment of $755,000 was sufficient to permit the transfer to go forward, because it “specifically reject[ed]” Basmajian’s suggestion “that a determination of the amount of the beneficiaries’ respective interests” should be completed “before first proceeding with the subject purchase,” and it ordered the trustee to “cooperate in all respects including in opening Escrow.”

The court addressed the issue again on June 28, 2010, in response to Basmajian’s application for an order requiring additional security prior to the transfer of the Hesby property. The court denied Basmajian’s ex parte application, stating that it had “already generally considered the issues now being raised by Mr. Basmajian.” Accordingly, although the court recognized “there can be no absolute certainty as to what may ultimately be determined regarding the various monetary claims,” it ordered the sale of the Hesby property to go forward in order to “resolve the issues which have apparently been in the making for over a decade.”

In short, there can be no doubt that when the court ordered the transfer of the Hesby property to Adelmann in 2010, it was well aware that the trustee had received $755,000 (not $1,510,000) from Adelmann in exchange for the property. It also was aware that Basmajian objected to the transfer of the property to Adelmann for $755,000 because he believed that Adelmann’s share of the residue of the estate was less than $755,000. Accordingly, the issue raised in the section 850 petition—whether the Hesby property had been properly transferred to Adelmann in exchange for her payment of $755,000 into escrow—was actually litigated and necessarily decided in a final order issued by the probate court in 2010. Basmajian therefore is precluded from seeking readjudication of the issue in this proceeding.

B. Basmajian’s Contentions Are Without Merit

Basmajian concedes that an order distributing estate property is conclusive if not appealed, but he urges that the dispositive order entitled to res judicata effect in this case is the December 9, 2009 order setting out the terms by which the parties could bid on the Hesby property, not the February 16, 2010 order directing the sale of the property. Basmajian urges: “The [December 9] Order did in fact determine substantial rights between Basmajian and Adelmann (how to gain title to the building and payment therefor), and constitutes a conclusive probate order which has never been directly attacked.” Thus, Basmajian contends, he is entitled to “enforce compliance with” the December 9 order.

The problem with Basmajian’s contention is that it relies on his interpretation of the December 9 order—an interpretation that, as we have said, the probate court has rejected. If Basmajian believed the court’s interpretation of that order was erroneous, he was free to have challenged it on appeal. Because he did not do so, the court’s interpretation of the order is conclusive and may not now be collaterally attacked. (See Meyer, supra, 162 Cal.App.4th at p. 992 [“ ‘If the decree erroneously interprets the intention of the testator it must be attacked by appeal and not collaterally. [Citations.] If not corrected by appeal an “erroneous decree . . . is as conclusive as a decree that contains no error,” ’ ” italics added]; Callnon, supra, 70 Cal.2d at p. 157 [same].)

Basmajian also contends the trial court erred by granting judgment on the pleadings because it relied on “controverted facts.” Not so. It is well established that “[i]f all of the facts necessary to show that an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may properly sustain a [motion for judgment on the pleadings].” (Frommhagen v. Bd. of Supervisors (1987) 197 Cal.App.3d 1292, 1299; see also Key, supra, 34 Cal.App.5th at p. 532 quoting Frommhagen.) In the present case, all the facts on which we rely to conclude that Basmajian’s section 850 petition is barred by res judicata are derived either from the petition or the records of prior proceedings in the probate court, of which the probate court took judicial notice. Accordingly, our conclusion that Basmajian’s petition is barred by res judicata does not depend on any controverted facts.

Finally, Basmajian urges that the probate court abused its discretion by denying leave to amend the petition because it is “ ‘reasonably possible’ ” he could cure the defect by amendment. As relevant here, he says that if he were permitted to amend the petition, he could allege that the probate court’s February 16, 2010 order was not a “final decision” regarding the transfer of the Hesby property; the probate court “has never heard and ruled on Adelmann’s violation of the [December 2009] order;” and “the issue of Adelmann’s actual failure to pay full price into escrow for the [Hesby property] was never considered by the [probate court] subsequent to the conveyance to Adelmann, or at any other time.” Again, we do not agree. In considering a motion for judgment on the pleadings, “ ‘ “we take as true the well-pleaded factual allegations of the complaint,” ’ ” but we must “ ‘disregard any allegations of [a] complaint that conflict with judicially noticed documents.’ ” (York, supra, 33 Cal.App.5th at p. 1193.) Because Basmajian’s proposed amendments conflict with documents of which the probate court properly took judicial notice, they are not a proper basis on which to grant leave to amend.

DISPOSITION

The order granting judgment on the pleadings is affirmed. Adelmann is awarded her appellate costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

EGERTON, J.