Ferraro v. Camarlinghi

• Decision Date: 27 March 2008
• Docket Number: No. H030890.,H030890.
• Citation: 161 Cal.App.4th 509,75 Cal.Rptr.3d 19
• Court: California Court of Appeals Court of Appeals
• Parties: Sandra FERRARO, Plaintiff and Appellant, v. Susan CAMARLINGHI et al., Defendants and Respondents.

75 Cal.Rptr.3d 19

161 Cal.App.4th 509

Sandra FERRARO, Plaintiff and Appellant, v. Susan CAMARLINGHI et al., Defendants and Respondents.

No. H030890.

Court of Appeal, Sixth District.

March 27, 2008.

As Modified on Denial of Rehearing April 24, 2008.

Michael G. Desmarais, Los Gatos, Attorney for Defendants and Respondents Susan Camarlinghi et al.

Steven J. Andre, Attorney for Plaintiff and Appellant Sandra Ferraro.

RUSHING, P.J.

The fundamental precept of due process is that before official action may be taken in derogation of an individual's rights, liberties, or property, the individual must be permitted a fair opportunity to appear before the decisional authority and show, if he can, why the proposed action should not be taken. In the proceedings giving rise to this and two companion appeals, this principle was drowned in a maelstrom of procedural confusion and obfuscation. The unfortunate result has been a tremendous waste of time and resources.

The underlying controversy concerns the decision by decedent Jane E. Ferraro to leave all her property to her two children, respondents Susan Camarlinghi and Michael Kelley. One of her two stepdaughters, Patricia Dean Ferraro Hull, filed an action alleging that this disposition violated an agreement between decedent and her predeceased husband, Pat Ferraro, to divide the property among her two children and his two daughters, Patricia and appellant Sandra Ferraro. In the course of several civil suits and probate proceedings following decedent's death, all of the claimants except appellant settled their differences without notice to her, and then secured a stipulated order from the court purporting to extinguish her rights against decedent's estate and trust. The settling parties thereafter cited that order, and a purported default entered against appellant in one of the civil actions, to successfully obstruct all efforts by appellant to pursue her claims on the merits.

The present appeal is taken from an order striking appellant's civil complaint following a rejection of her claim in the probate proceedings. The question presented is whether the trial court properly struck the complaint on the grounds that it was precluded by prior judgments or orders, the statute of limitations, or the compulsory cross-complaint rule. We conclude that the trial court erred because none of the orders cited as bars to the action was shown to possess the characteristics necessary to give them preclusive effect against her. We also hold that her claims were asserted within the applicable limitations period, and that the compulsory cross-complaint rule does not apply to those claims. Accordingly, we will reverse the judgment. In one of the companion appeals (Camarlinghi v. Ferraro et al. (Mar., 2008, H030777), 2008 WL 808050 [nonpub. opn.]), we hold that the court also erred by approving a decree of final distribution while appellant's claims remained unresolved. In the other (Ferraro v. Ferraro; Camarlinghi, et al. (Mar., 2008, H030206), 2008 WL 808054 [nonpub. opn.]), we hold that certain orders concerning appellant's attempts to assert a cross-action in her sister's civil case are not appealable.

BACKGROUND

A. Patricia's Civil Action and Appellant's "Default"

On a date not disclosed by the record, decedent Jane Ferraro married Pat Ferraro. Pat had two children, Patricia and Sandra, by a prior marriage.¹ Decedent likewise had two children, respondents Susan and Michael.

Pat died on July 15, 1987. In 1993, decedent established a trust of which respondents are the successor trustees. At the same time she executed a will leaving all of her tangible personal property to respondents, and the residue of her estate to the trustees of the trust. The will appointed respondents to be co-executors of the estate. It identified Patricia and appellant as "stepchildren now living" but declared an intent not to provide for any heir other than as specifically stated, and defined "child" not to include "stepchild."

Decedent died on April 9, 2004. No attempt was made initially to probate her will, but on June 22, 2004, Susan filed a petition in Santa Cruz County, number PR 43226, to determine the existence of a trust.²

On July 8, 2004, Patricia filed a civil action in Santa Clara County alleging that decedent and Pat had agreed orally and in writing that "upon the death of the last survivor, all of their estate properties and assets would be left equally to the four children...." The complaint alleged in essence that decedent had violated this agreement by selling or appropriating to her own and her children's exclusive use certain properties in Santa Cruz and Santa Clara counties. The complaint named respondents as defendants, both individually and as successor trustees under the 1993 trust.³ The complaint also named appellant as a defendant on the stated ground that she was "the sister of plaintiff and ... named as a necessary party, because she has not consented to be joined as a plaintiff." The complaint asserted that decedent's agreement with Pat was "for the benefit of plaintiff and plaintiffs sister," that the defendants "knew or should have known of plaintiffs claim and the claim of plaintiffs sister," and that by the conduct alleged in the complaint they "intended to exclude plaintiff and plaintiffs sister" from the benefits of the agreement. The complaint sought a variety of remedies, including "[a] declaration of rights and duties in connection with and relating to status of the parties, their relationship and obligations thereunder." More specifically it sought a declaration that all of decedent's property was held in constructive trust, that Patricia was "the beneficiary of the constructive trust," and that "defendants, excluding SANDRA LYNN WISE (FERRARO), hold all of said assets as constructive trustee for the use and benefit of plaintiff."⁴ It also included a request for "[r]elief as against SANDRA LYNN WISE (FERRARO) as to any relief obtained to the extent and benefits herein."

On July 15, 2004, a copy of Patricia's complaint was personally served on appellant at "3339 Linduir [sic ] Dr[ive]" in San Jose. Appellant did not file a response, but attempted to participate in the action by directly contacting Patricia and Patricia's attorney, Robert Mezzetti.⁵ These efforts were firmly rebuffed, and Sandra apparently took no action to join the suit until she engaged counsel in early 2005. (See pt. II.D, post.)

On November 1, 2004, a copy of a request to enter default was mailed to appellant at "3339 Linduir [sic] Drive" in San Jose. On the following day, Patricia applied for, and the superior court clerk entered, appellant's purported default. Appellant later declared that no one ever warned her of an impending default, and she never received notice of the request to enter default. She only learned that her default had been entered when her attorney, whom she engaged in early 2005, so advised her.

B. Probate Proceedings

On December 1, 2004, Patricia filed a probate petition in Santa Clara County for letters of special administration with respect to decedent's estate. The petition "requested] the power to pursue" Patricia's civil action. Appellant was identified in an attached "list of parties" as decedent's stepdaughter; her address was given, "so far as known to or reasonably ascertainable by petitioner," as 3339 Lindmuir [sic] Drive in San Jose. An accompanying proof of service, however, showed that a copy of the petition was mailed to appellant at 16091 Highland in San Jose. A year later appellant would declare without contradiction that she had been "unaware that there was any proceeding pending concerning the estate of Jane Ferraro until days ago when my attorney advised me of this fact."

On December 14, 2004, Susan filed a competing petition in the Santa Clara probate matter, seeking the probate of decedent's will of July 12, 1993, and her own (Susan's) appointment as personal representative to administer decedent's estate.⁶ A proof of service accompanying the notice of the petition indicated that a copy was mailed to appellant at 16091 Highland in San Jose.

On December 29, 2004, in the Santa Clara probate matter, Patricia filed a "contest ... and opposition to probate of will and trust" (will contest). The petition named Susan and Michael as respondents and asserted five grounds of objection to probate of the July 1993 will. Four were stated in purely conclusory language: lack of sound mind, lack of due execution, undue influence, and duress. (See Prob. Code, § 8252.) The fifth, fraud, was alleged with greater specificity, as follows: "The purported documents were procured to be made, and to be signed by decedent, by reason of the fraud of [Susan and Michael] in that they and decedent eliminated contestant Patricia Ferraro as an heir to the Jane E. Ferraro Estate and in violation of the agreements oral and written, decedent Jane E. Ferraro had with contestant's predeceased father, Pat Ferraro, as specified and set forth in Santa Clara County Superior Court action number 1-04-CV-022923," i.e., Patricia's civil complaint, a copy of which was attached. Appellant was mentioned twice in the will contest: first in quoting the caption of Patricia's civil complaint, where appellant is described as "named herein as a necessary party, because she has not been joined as a plaintiff; and second in listing her as an "heir[] of decedent," giving her address as 3339 Lindmuir Drive, San Jose. We find no evidence in this record of any attempt to impart notice of the will contest to appellant.

On December 30, 2004, according to the later application for approval of the settlement agreement and stipulation of the settling parties, the court issued letters of special administration to Susan. The present record does not indicate what these letters authorized her to do.

C. Appellant's Santa Cruz Action

According to appellant's attorney Steven Andre, he was engaged in early 2005...