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Newport Beach Chabad Center v. Hymes

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE


October 16, 2009

NEWPORT BEACH CHABAD CENTER, PLAINTIFF AND APPELLANT,
v.
MYLES HYMES, INDIVIDUALLY AND AS SUCCESSOR TRUSTEE, ET AL., DEFENDANTS AND RESPONDENTS.

APPEAL from orders of the Superior Court of Los Angeles County, Aviva K. Bobb, Judge. Dismissed. (Los Angeles County Super. Ct. No. BP109533).

The opinion of the court was delivered by: Turner, P. J.

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff, Newport Beach Chabad Center, purports to appeal from orders sustaining the demurrers of defendants, Ed Gregory Hookstratten individually and as the trustee of the Joey Bishop Survivor's Trust, Myles Hymes and Nicole Garibotti and denying a reconsideration motion. Mr. Hymes, individually and as trustee of the First Amended and Completely Restated Declaration of Trust of the Survivor's Trust Established Under the Joey and Sylvia Bishop Revocable Trust (the trust) has moved to dismiss the appeal from the November 12, 2008 order sustaining the demurrers and the December 5, 2008 order denying plaintiff's reconsideration motion. We set the dismissal issue for oral argument. We dismiss the appeal.

On June 3, 2008, plaintiff filed a petition to invalidate the residuary clause provisions of the trust. Mr. Hookstratten and Mr. Hymes demurred to plaintiff's petition. On August 27, 2008, Ms. Garibotti, a trust beneficiary, joined in Mr. Hookstratten's and Mr. Hymes's demurrers to plaintiff's petition. The demurrers were sustained and plaintiff's ensuing reconsideration motion was denied. On November 12, 2008, plaintiff's petition was dismissed. On December 12, 2008, plaintiff filed its notice of appeal from the demurrer dismissal and the order denying reconsideration.

On January 28, 2009, Mr. Hymes, in his role as successor trustee, filed a petition to approve a settlement agreement. A copy of the notice of hearing and petition were served on plaintiff's counsel. No opposition was filed by plaintiff to Mr. Hymes's petition to approve the settlement agreement. On March 27, 2009, the probate court approved the settlement agreement. On March 27, 2009, the notice of entry of the order approving the settlement agreement was served on plaintiff's counsel. No notice of appeal was filed from the March 27, 2009 probate court order approving the settlement agreement.

Defendants have moved to dismiss the appeal because it is moot. Plaintiff's petition alleged it should have received all of the trust residue. The settlement agreement provides all of the trust residue is to be paid to Ms. Garibotti, Mr. Hookstratten, Mr. Hymes and Scott and Kirk Bishop. Plaintiff was provided notice of the March 9, 2009 hearing which approved the settlement agreement. Plaintiff was further provided with notice of entry of the March 27, 2009 order approving the settlement agreement. Plaintiff did not file a notice of appeal from the March 27, 2009 order approving the settlement agreement.

We agree with defendants the challenged rulings are barred by res judicata principles. The March 27, 2009 order approving the settlement agreement was appealable. As plaintiff took no steps to appeal, the matters embraced within the March 27, 2009 order approving the settlement agreement, the manner in which the trust residue must be dispersed, are entitled to res judicata effect. (In re Matthew C. (1993) 6 Cal.4th 386, 393; Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1450, fn. 5.) And the res judicata effect of the final order approving the settlement agreement applies to any issue raised by plaintiff. (Bennett v. Forrest (1944) 24 Cal.2d 485, 493; Noggle v. Bank of America (1999) 70 Cal.App.4th 853, 862.) Because there is no issue we can resolve, the appeal is moot. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541; City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 479-480.)

There is no merit to plaintiff's due process-based contention. The notice of hearing and petition to approve the settlement agreement was served on plaintiff's counsel. Further, we are unpersuaded by plaintiff's argument that had it objected to the final approval it would have been subject to sanctions pursuant to Code of Civil Procedure section 128.7, subdivision (c). The probate court never issued any order barring plaintiff from objecting to any subsequent petition or filing a notice of appeal from the order approving the settlement. And although such an objection or appeal may have been without merit, it would not have been frivolous. Finally, we need not address defendants' collateral estoppel contentions.

The appeal is dismissed as to all defendants. Myles Hymes shall recover his costs incurred on appeal from plaintiff, Newport Beach Chabad. All other parties shall bear their own costs on appeal.

We concur: ARMSTRONG, J., KRIEGLER, J.

20091016

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