Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. P03-01571
McGuiness, P.J.
Appellant Paula N. Belloni seeks to appeal a judgment distributing the entire estate of her deceased brother to Frank Belloni, the father of the decedent and Paula. Paula claims her father, without her knowledge or consent, included among the assets of the decedent’s estate a 401(k) account that is rightfully hers. She asserts the judgment must be vacated because it was obtained through extrinsic fraud or mistake and because she was denied notice and an opportunity to be heard.
For the sake of clarity and convenience, we refer to the parties by their given names. We intend no disrespect.
Paula admits she was not a party to the probate proceeding. She did not pursue her claims or seek to vacate the judgment in the court below on the grounds she now raises in this court. As a consequence, she lacks standing to appeal, and we are compelled to dismiss the appeal.
Factual and Procedural Background
Michael Justin Belloni died intestate on August 26, 2003. He was survived by his father, Frank, who filed a petition to be appointed administrator of the estate. Frank alleged that Michael died without a spouse or issue. The petition identified Frank as the sole surviving parent and listed Linda Parker as a “possible domestic partner” of Michael. Michael was also survived by his sister, Paula, who is Frank’s daughter.
On November 10, 2003, Paula appeared in propria persona at a hearing on Frank’s petition. Frank appeared through his attorney of record. Paula and Frank stipulated to the appointment of Clifford Egan as a temporary judge until the action reached a final determination. The matter was ultimately continued to January 20, 2004, with a deadline of January 12, 2004, for the filing of objections. Frank’s attorney served the notice of the continued hearing date and deadline for objections on both Paula and Linda Parker, the putative “domestic partner” of the deceased. No objections were filed.
The probate court appointed Frank as administrator of the estate at the hearing on January 20, 2004. Paula did not make an appearance at the hearing. The court issued letters of administration to Frank on February 27, 2004.
Paula thereafter sought to be appointed as guardian ad litem for Linda Parker in a petition filed September 2, 2004. Paula asserted that Linda suffered from “several serious medical issues” and had requested that Paula serve as her guardian ad litem to pursue creditor’s claims against Michael’s estate. Paula alleged that Michael had not been formally married to Linda Parker but that they had been living together as husband and wife for 11 years. She further alleged it was Michael’s intention to allow Linda to have his real property upon his death. In the petition seeking to be Linda’s guardian ad litem, Paula stated: “There is no conflict of interest for me in assisting Linda Parker in that I will not take anything from my brother’s estate.”
The court appointed Paula as Linda’s guardian ad litem on November 9, 2004. Paula filed four creditor’s claims on Linda’s behalf. Among other things, Paula claimed Michael had promised to give the balance of his estate to Linda. Frank, as administrator of Michael’s estate, expressly rejected as untimely all of the claims asserted on Linda’s behalf. No action was brought on any rejected claim.
Frank filed an initial inventory of the estate on April 18, 2006, listing Michael’s residence in Martinez as the estate’s sole asset, with an appraised value of $340,000. In a second and final inventory filed June 18, 2007, Frank listed one additional asset of the estate, identified as “Wells Fargo Bank Account No. 545744646,” with an appraised value of $174,418. No further description of the account is contained in the record on appeal.
On the same date Frank filed the final inventory, he also filed a petition for final distribution. There is no indication Paula was served with the petition, although counsel for Paula, in her capacity as guardian ad litem for Linda Parker, apparently did receive notice of the petition for final distribution.
At the hearing on the petition for final distribution, Frank, through his counsel, stipulated to the appointment of Maurice Huguet to serve as a temporary judge. Paula was not present at the hearing. In a judgment of final distribution filed August 9, 2007, the probate court ordered Michael’s estate of $473,167 distributed to Frank, the sole heir of the decedent under California’s law of intestate succession. Michael’s estate consisted of the proceeds of the sale of his real property plus the value of the Wells Fargo account identified in the final inventory, less amounts for legal fees and costs.
Paula filed a notice of appeal from the judgment of final distribution on October 5, 2007. In the notice of appeal, Paula identified herself as an “interested person” and “heir.” She did not purport to appeal the judgment in her capacity as guardian ad litem for Linda Parker.
Discussion
Paula’s primary complaint is that Frank improperly classified the Wells Fargo account as an asset of the estate. She claims the account, described as a “401(k) Plan Account,” is rightfully hers “in her capacity as trustee.” Paula asserts Frank included the account in Michael’s estate despite knowledge of her claimed ownership of the account.
On appeal, Paula contends the judgment must be vacated because it was obtained through extrinsic fraud and because she was deprived of her property without notice or an opportunity to be heard. She further argues the final distribution is not conclusive against her and must be vacated because her individual property was included among the assets of the estate without her knowledge or consent. Finally, she contends the judgment must be vacated as void because she did not stipulate to the appointment of Maurice Huguet as a temporary judge.
It is our role as an appellate court to review the propriety of a ruling based on the record that was before the lower court at the time it made the challenged ruling. (In re Robert A. (2007) 147 Cal.App.4th 982, 990.) Here, there is no support in the record for Paula’s contentions regarding the disputed Wells Fargo account. There is nothing to suggest she had an ownership interest in the account, that she claimed such an interest, or that Frank was aware of her claim of ownership. She has offered no factual support for her claims other than bare assertions raised for the first time in her appellate briefs. Even if Paula had offered us admissible evidence of her claims, we would not be in a position to consider such evidence for the first time on appeal.
She does not explain the basis for her claimed ownership interest in the Wells Fargo account, other than stating it is hers in her capacity as trustee. With regard to her assertion that Frank knew of her claimed interest, it was not until her reply brief on appeal that she first explained the factual support for her assertion, identifying two letters written in 2006 and 2007 purportedly apprising Frank’s counsel of her ownership interest in the account. The letters are not part of the record on appeal.
This deficiency by itself would be sufficient for us to dispose of the appeal, but the appeal suffers from an even more fundamental infirmity—Paula is not a party of record and consequently lacks standing to appeal. “Standing to appeal is ‘jurisdictional and therefore cannot be waived.’ [Citation.]” (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295 (Marsh).) Section 902 of the Code of Civil Procedure provides that “[a]ny party aggrieved may appeal in the cases prescribed in this title.” Thus, to have standing to appeal, a person generally must be both a party of record and aggrieved by the challenged judgment. (Marsh, supra, 43 Cal.App.4th at p. 295.)
Paula concedes she was not a party of record in the probate proceeding below. She appeared at an initial hearing in the matter, at a time before Frank was appointed as administrator, but that was her sole involvement other than in her role as guardian ad litem for Linda Parker, the decedent’s putative domestic partner. She is pursuing this appeal in her individual capacity and not as guardian ad litem.
In probate proceedings, standing requirements are more leniently applied, permitting some nonparty estate beneficiaries to appeal if legally aggrieved by the probate court judgment or order. (See Estate of Zabriskie (1979) 96 Cal.App.3d 571, 575.) Paula is not a beneficiary of the estate, nor does she claim to be. Unlike beneficiaries, creditors of an estate do not have an interest in the proceeding sufficient to confer standing to appeal unless the creditor has made itself a party of record. (Estate of Partridge (1968) 261 Cal.App.2d 58, 60-61.) “The proper procedure for an alleged creditor of an estate who feels aggrieved by an order of the probate court, and did not participate in the proceedings in which the order was made, is to move to set aside or vacate such order and then, if the motion is denied, appeal from the order of denial.” (Ibid.) Paula expressly disclaims that she is a creditor of the estate and argues that standing requirements governing creditors do not apply to her.
As it relates to intestate succession, the term “beneficiary” refers to an “heir.” (Prob. Code, § 24, subd. (a).) “ ‘Heir’ means any person, including the surviving spouse, who is entitled to take property of the decedent by intestate succession under [the Probate Code].” (Prob. Code, § 44.) Pursuant to Probate Code section 6402, subdivision (b), Frank, as the surviving parent, is the sole heir, given that Michael had no issue and was not survived by a spouse or lawful domestic partner. Although Linda Parker asserted she was Michael’s domestic partner, the administrator of Michael’s estate rejected Linda’s claim and no further action was brought to pursue the matter or preserve the issue for appeal.
As support for her claim to have standing to appeal, Paula relies upon the exception to the “party of record” requirement in cases where a judgment or order has a res judicata effect on a nonparty. (See Marsh, supra, 43 Cal.App.4th at p. 295.) The exception applies to a nonparty “ ‘who would be bound by the doctrine of res judicata’ ” and who is “aggrieved” by the challenged order because its effect on the nonparty is ‘ “ ‘immediate, pecuniary, and substantial . . . .’ ” ’ [Citation.]” (Ibid.) The exception is inapplicable here.
“The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.” (7 Witkin, Cal. Procedure (5th ed. 2008) Judgment § 334, p. 938.) However, the doctrine does not apply to void judgments. (Id., § 343, p. 953.) “ ‘Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction, or where it is obtained by extrinsic fraud. [Citations.]’ [Citation.]” (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239-1240.)
Paula’s main assertion on appeal is that the judgment is void, either because she lacked notice of the proceedings, the judgment was obtained by extrinsic fraud, or because the judge pro tem had no authority to decide the matter. One of her key contentions is that the judgment of final distribution has no conclusive effect because her property was included in the assets of the estate without her knowledge or consent. Thus, the thrust of her appeal is that she is not bound by the judgment. A nonparty lacks standing to appeal when the challenged judgment does not have a binding effect on the nonparty. Paula’s remedy, if any, is not direct appeal but collateral attack on the judgment, such as a motion to vacate or a separate action to void the judgment.
A review of the facts of Marsh, supra, 43 Cal.App.4th 289, explains why the exception to the “party of record” requirement for certain nonparties is inapplicable here. In that case, an expert witness filed an appeal from an order setting the hourly fee for the expert’s deposition. (Id. at p. 293.) The expert was not a party and had not sought to vacate the order. (Id. at p. 295.) Nevertheless, the Court of Appeal held the expert had standing to appeal, citing the rule that the order had an immediate, pecuniary, and substantial injurious effect upon the expert and was res judicata as to the issue of his fee. (Id. at pp. 293, 296.) Significantly, the issue of the expert’s fee was fully litigated in the trial court and the expert had been represented by his own counsel in the trial court on the motion to set his fee. (Id. at pp. 293-294.) Further, the appellate court observed that the procedure for determining an expert’s fee effectively made the expert a “party” to the motion although not to the underlying action. (Marsh, supra, 43 Cal.App.4th at pp. 296-297.)
Likewise, in another case relied upon by Paula, People v. Stark (2005) 131 Cal.App.4th 184, 190, the nonparty who sought to appeal had participated in the trial court proceedings that resulted in the challenged order. The issues on appeal had been fully litigated in the trial court before the nonparty appealed the decision, and the nonparty was bound by the decision. (Id. at p. 201.)
Here, unlike in Marsh and Stark, the issues Paula seeks to raise on appeal were not litigated at all in the probate court. It would have served no purpose for the expert in Marsh to move to vacate the challenged order because he had fully participated in the motion that resulted in the order. By contrast, a motion to vacate in this case would have permitted the probate court to consider Paula’s contentions for the first time. Further, the expert in Marsh could not pursue a collateral attack on the order because he was bound by the decision concerning his fees. His only option was to challenge the trial court’s decision in a direct appeal. In this case, because Paula contends the judgment is void, she could have pursued a collateral attack, such as an action to invalidate the judgment as void.
An illustration of such a collateral attack is provided by one of the cases on which Paula relies, Shaw v. Palmer (1924) 65 Cal.App. 441. The case bears some similarities to this one because it involved a party who claimed his property had wrongly and without his knowledge been included in an estate that was the subject of a decree of final distribution. (Id. at p. 445.) The party who received the distribution of the disputed property asserted that the decree of final distribution was conclusive and binding upon the other party. (Ibid.) The court disagreed, holding that the “decree cannot have the effect of conclusiveness as against a party . . . [if] his individual property has been, without his knowledge or consent, included among the assets of the estate . . . .” (Id. at p. 446.) The case confirms that an order of final distribution does not have res judicata effect upon a person whose property has been included in an estate without his knowledge or consent. Notably, however, the action was not a direct appeal from a judgment of final distribution, as is the case here. Rather, it arose from a separate, collateral action for conversion filed by the party who claimed his property had improperly been included in the estate. (Id. at p. 442.)
If we were to accept Paula’s argument regarding standing to appeal, we would in effect allow a stranger to an action to appeal a judgment based merely upon an unsupported assertion that the stranger’s pecuniary interests were affected by the judgment. Paula offers no support for such a proposition. A nonparty may, in certain circumstances, have standing to appeal when the nonparty is both aggrieved and bound by the judgment. (Marsh, supra, 43 Cal.App.4th at p. 295.) Paula cannot satisfy the standing requirements for a nonparty. Putting aside her unauthenticated statements in her briefs on appeal, the record on appeal does not show she is aggrieved. And, as someone whose claim is that she lacked notice of the action and an opportunity to be heard, Paula is not bound by the decision to the extent it may affect a valid claim of ownership in the Wells Fargo account that was included in the estate.
Because Paula lacks standing to appeal, we are compelled to dismiss her appeal. (See In re Daniel M. (2003) 110 Cal.App.4th 703, 709.)
Our disposition should not be construed to mean that Paula lacks a remedy, assuming her claims are valid. She may seek to vacate the judgment or file a collateral action attacking it as void.
Disposition
The appeal is dismissed. Respondent shall recover his costs on appeal.
We concur: Pollak, J., Siggins, J.