Aiassa v. Beck, Ross, Bismonte & Finley, LLP, H040893
| Decision Date | 20 December 2017 |
| Docket Number | H040893 |
| Court | California Court of Appeals Court of Appeals |
| Parties | ANNETTE AIASSA, Plaintiff and Appellant, v. BECK, ROSS, BISMONTE & FINLEY, LLP et al., Defendant and Respondent. |
It is ordered that the opinion filed herein on December 20, 2017, be modified as follows:
On page 13, final paragraph, in the first sentence beginning with "Here, the trial court . . . ," delete the words "either that the Mount Hamilton Property was sold at a grossly inadequate price or."
On page 13, final paragraph, delete the second sentence beginning with "We begin with ...."
On page 14, delete the first paragraph beginning with "Aiassa alleges that the Mount Hamilton Property ...."
On page 15, first paragraph, delete the first sentence, beginning with "Aiassa's second cause of action ...."
There is no change in the judgment. The petitions for rehearing are denied.
The request for publication of the opinion filed in the above entitled action by Aiassa on January 9, 2018, is denied. The opinion does not establish a new rule of law, nor does it meet any of the other criteria set forth in California Rules of Court, rule 8.1105(c).
In compliance with California Rules of Court, rule 8.1120, the Clerk shall transmit the request for publication and a copy of this order to the Supreme Court./s/_________
/s/_________
/s/_________
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. 1-13-CV-252049)
Plaintiff Annette Pastorini Aiassa appeals from a judgment of dismissal entered after the trial court sustained defendant Corinna Pokorny's demurrer to the first amended complaint without leave to amend. We shall affirm.
In 2010, Aiassa agreed to settle a probate action (the Probate Action) pending in Santa Clara County Superior Court. Among other things, she agreed to the placement of judgment liens on her residence (the Mount Hamilton Property) to satisfy trustee and attorney fees incurred in the action. Pursuant to the settlement agreement (the Settlement Agreement), the probate court entered a stipulated judgment (the Stipulated Judgment) awarding money judgments to the probate trustee, the trustee's attorneys, and Aiassa's probate attorneys. The Stipulated Judgment ordered the attachment of judgment liens against the Mount Hamilton Property to secure those money judgments. The Stipulated Judgment further ordered Aiassa to sell the Mount Hamilton Property by July 22, 2012.In the event Aiassa failed to sell the property, the Stipulated Judgment provided for the property's sale under a writ of execution.
When Aiassa failed to sell the Mount Hamilton Property as ordered, the trustee's attorneys moved for an order for sale. In February 2013, Aiassa and the trustee's attorneys entered a stipulation for order for sale of property. Among other things, the parties stipulated that the fair market value of the Mount Hamilton Property was $1,509,000 and that the minimum bid that the Sheriff could accept at an execution sale was $1,358,100.
Pokorny purchased the Mount Hamilton Property for $1,561,000 at a July 2013 execution sale conducted by the Sheriff. One month later, Aiassa filed this action (the Equitable Action) to set aside the Stipulated Judgment.
The operative first amended complaint names several defendants, including Pokorny, the trustee, the trustee's attorneys, and Aiassa's probate attorneys. It asserts two causes of action. The first seeks equitable relief to set aside the Stipulated Judgment, which Aiassa alleges was obtained by extrinsic fraud or mistake. Specifically, she alleges the Probate Code required the trustee and probate attorneys to request their fees on noticed motion supported by declarations. Because the trustee and probate attorneys circumvented those statutory requirements by entering a private agreement regarding fees, the Stipulated Judgment is void as a fraud upon the probate court. Further, Aiassa alleges the Stipulated Judgment was procured by attorney misconduct. In particular, she alleges her attorneys in the Probate Action did not properly advise her in connection with the Settlement Agreement, including by failing to disclose the terms of the Settlement Agreement to her or advise her to seek the advice of an independent attorney regarding the Settlement Agreement, which gave the attorneys an adverse security interest in the Mount Hamilton Property.
The second cause of action seeks equitable relief or equitable redemption to set aside the sale of the Mount Hamilton Property. Aiassa alleges the property was worthbetween $2.5 million and $5 million, and that the purchase price of $1,561,000 was grossly inadequate. She further alleges violations of Code of Civil Procedure section 704.800, subdivisions (a) and (b). Finally, Aiassa alleges Pokorny took undue advantage by, among other things, knowingly purchasing an undervalued property subject to allegedly fraudulent judgment liens with the intent to flip it for a profit.
Apparently, Pokorny is the only defendant Aiassa served in this action. Pokorny moved to dismiss on numerous grounds, including res judicata and collateral estoppel, and to enforce the Settlement Agreement. Pokorny also filed a demurrer and motion to strike. She demurred on the ground that the first amended complaint failed to state a claim against her and moved to strike certain paragraphs of the first amended complaint on various grounds, including res judicata. Aiassa did not oppose the demurrer.
On December 10, 2013, the trial court denied Pokorny's motion to dismiss without prejudice and denied her motion to enforce the Settlement Agreement without prejudice to Pokorny "seeking to enforce the settlement agreement in the Probate action." The same day, Pokorny moved, in the Probate Action, to enforce the Settlement Agreement and to enjoin prosecution of the Equitable Action. The probate court granted that motion on January 6, 2014. The probate court enjoined Aiassa from (1) prosecuting the Equitable Action against Pokorny, (2) asserting any claim raising extrinsic fraud as grounds for voiding or not enforcing the Stipulated Judgment, and (3) asserting any claim based on the assertion that the Mount Hamilton Property was worth more than $1,509,000 at the time of its sale.
On February 5, 2014, the court in the Equitable Action sustained Pokorny's demurrer for failure to allege sufficient facts to state a cause of action and denied leave to amend based on the Stipulated Judgment and the injunction issued in the Probate Action. The court denied the motion to strike as moot. Aiassa appealed from the order sustaining Pokorny's demurrer on March 14, 2014.
Pokorny moved to augment the record with various documents filed in the Probate Action. This court deemed that motion to be a request for judicial notice and granted it. Pokorny has moved to file a sur-reply and for sanctions. We address those pending motions below.
Aiassa filed her appeal prematurely from a non-appealable order before judgment had been entered. "An order sustaining a demurrer without leave to amend is not appealable, and an appeal is proper only after entry of a dismissal on such an order." (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.) The Rules of Court allow us to "treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment." (Cal. Rules of Court, rule 8.104, subd. (d)(2).) Because an appealable judgment of dismissal was later entered, this court, on its own motion, deemed the notice of appeal filed as of May 9, 2014, the date the notice of entry of judgment was served. (Doan v. State Farm General Ins. Co. (2011) 195 Cal.App.4th 1082, 1090, fn. 4 [].)
Aiassa purports to challenge the injunction entered in the Probate Action. Pokorny likewise appears to believe that the Probate Action injunction is directly before us on appeal. It is not. Our review is limited to the order issued in the instant action sustaining Pokorny's demurrer without leave to amend. The Probate Action injunction is outside the scope of this appeal. Below, we conclude the trial court properly sustained Pokorny's demurrer because the first amended complaint does not state a claim against her. We further conclude Aiassa has not carried her burden to show a reasonable possibility that an amendment will cure the pleading defects, such that the trial court didnot abuse its discretion in denying her leave to amend. Because the Probate Court injunction has no bearing on our resolution of this appeal, we do not address its propriety.
Pokorny has moved to file a sur-reply, arguing that Aiassa improperly raised new arguments in her reply brief. We disagree and deny the motion.
Pokorny contends that Aiassa argued in her opening brief that the probate court lacked general or equitable jurisdiction, such that it was not empowered to rule on Pokorny's Code of Civil Procedure section 664.6 motion enforce the settlement. According to Pokorny, Aiassa changed tack in her reply brief, "assert[ing] for the first time that the probate court lacked authority to grant injunctive relief . . . in conjunction with the granting of the section 664.6 motion." Pokorny is mistaken. Aiassa's opening brief disavowed any challenge to "the general...
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