In re Estate of Williams, B200879 (Cal. App. 3/12/2008)

• Decision Date: 12 March 2008
• Docket Number: B200879
• Court: California Court of Appeals Court of Appeals
• Parties: Estate of WILLIE MAE WILLIAMS, Deceased. KEITH WILLIAMS, as Administrator, etc., Plaintiff and Respondent, v. DAVID BEHREND et al., Defendants and Appellants; SAMMY RAY WILLIAMS, Defendant and Respondent. Estate of ARDIS WILLIAMS, Deceased. KEITH WILLIAMS, as Administrator, etc., Plaintiff and Respondent, v. DAVID BEHREND et al., Defendants and Appellants; SAMMY RAY WILLIAMS, Defendant and Respondent.

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Estate of WILLIE MAE WILLIAMS, Deceased.

KEITH WILLIAMS, as Administrator, etc., Plaintiff and Respondent, v. DAVID BEHREND et al., Defendants and Appellants;

SAMMY RAY WILLIAMS, Defendant and Respondent.

Estate of ARDIS WILLIAMS, Deceased.

KEITH WILLIAMS, as Administrator, etc., Plaintiff and Respondent, v. DAVID BEHREND et al., Defendants and Appellants;

SAMMY RAY WILLIAMS, Defendant and Respondent.

B200879

Court of Appeals of California, Second Appellate District, Division Five

March 12, 2008

NOT TO BE PUBLISHED

Appeal from orders of the Superior Court of Los Angeles County, Nos. BP096765, BP098203, Mitchell L. Beckloff, Judge. Affirmed.

Law Offices of Yevgeniya G. Lisitsa and Yevgeniya G. Lisitsa for Defendants and Appellants.

Law Offices of Deidra L. Stauff and Deidra L. Stauff; Law Offices of Harold J. Light, Harold J. Light and Bruce A. Gilbert for Plaintiff and Respondent.

Hinojosa & Wallet; Andrew M. Wallet and Rebekah E. Swan for Defendant and Respondent.

TURNER, P. J.

I. INTRODUCTION

At issue in this case are two verified Probate Code sections 850 and 859 petitions brought by Keith Williams, as the administrator of the estates Willie Mae Williams ("Willie Mae") and Ardis Williams, Los Angeles Superior Court, Case Nos. BP096765 and BP098203, respectively.¹ Appellants are David Behrend, Victor Roosen, and a trust, Trust Properties, LLC. Appellants were alleged in the petitions to have conspired with Sammy Ray Williams to deprive the estates of real properties. Appellants are alleged to have falsely claimed that Sammy was the child of Willie Mae and Ardis. Sammy is not related to decedents. Sammy was the son of a man named Ardis Lee Williams (Ardis Lee) who died in 1999. The appeal is from two orders denying two special motions to strike the petitions pursuant to Code of Civil Procedure² section 425.16. We affirm the orders denying the special motions to strike the Probate Code sections 850 and 859 petitions.

II. BACKGROUND

A. The First Amended Petitions

At issue in this case are two first amended Probate Code sections 850 and 859 petitions concerning the estate properties of the decedents, Willie Mae and Ardis. The first amended petitions allege that Willie Mae died on December 15, 2002, and Ardis on July 6, 2005. The probate court ordered the matters consolidated on December 15, 2006.

With respect to Willie Mae's estate, it was alleged that: at the time of her death, she owned real property located at 5163 South Manhattan Place in Los Angeles; on January 30, 2006, appellants along with Marc A. Petrie, conspired to convert the Manhattan Place property to themselves; Sammy posed as Willie Mae's son and prepared and filed a probate petition of her estate, Los Angeles Superior Court, case No. BP096765; letters of administration were issued to Sammy on June 28, 2006; the Manhattan Place property was sold to Trustee Properties, LLC as trustee for substantially less than the fair and adequate consideration; and the Manhattan Place property was subsequently transferred to Mr. Petrie. It was alleged that Trust Properties, LLC and Mr. Petrie are not bona fide purchasers for value.

As to Ardis's estate, the first amended petition alleged that: at the time of his death, Ardis owned real property located at 1719 West 35th Place, in Los Angeles as a surviving joint tenant of his wife, Willie Mae; Sammy and Mr. Petrie conspired among themselves to deprive Ardis's estate of the 35th Place property; the conspirators falsely claimed that Sammy was Willie Mae's son; and Sammy recorded an affidavit of death of joint tenant. The affidavit of death of joint tenancy falsely claimed Sammy's father, Ardis Lee died in 1999 and was married to Willie Mae. On the same date, Sammy signed a deed purporting to transfer the 35th Place property to Trustee Properties LCC as trustee of 1719 West 35th Place Trust. David Behrend subsequently transferred the 35th Place property to Mr. Petrie.

B. The Special Motions to Strike

After briefing was completed, we granted appellants' request to augment the record to include a copy of the special motion to strike in Willie Mae's estate, case No. BP096765 filed on May 24, 2007, by Mr. Behrend, Trustee Properties, LLC, and Mr. Roosen. This special motion to strike is exactly the same as the special motion to strike in Ardis's estate case No. BP098203. Both special motions to strike argued: the gravamen of the petitions arise of out alleged false statements made in court filings to obtain court orders; the probate petitions filed by Sammy arise out of protected activity such that his conduct is privileged pursuant to Civil Code section 47, subdivisions (b)(2), (3) and (4); and the burden must be shifted to Keith to show a probability of success on the merits.

Mr. Roosen argued he cannot be held liable because all the conduct alleged against him occurred either in court or "with court in mind" such that his conduct is absolutely privileged under Civil Code section 47. Trustee Properties, LLC contended it was not liable because no facts were alleged to show that it was anything other than an innocent third party assignee of Mr. Roosen's rights under the sales agreement with Sammy. Mr. Behrend contended if his codefendants were found not to be liable, then he likewise could not be the subject of suit. Mr. Behrend asserted that he was only derivatively liable on a conspiracy theory. Further, Mr. Berhend argued that he was acting at all times as the agent of Trustee Properties LLC. Thus, he was subject to the "agent immunity" rule described in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511 and Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 576.

In support of the special motions to strike, Mr. Roosen declared that he located the 35th Place property in August 2005 and found it in disrepair. Mr. Roosen canvassed the neighborhood. Mr. Roosen was told that Sammy was related to the record owner, Ardis. Sammy subsequently spoke to Mr. Roosen. According to Mr. Roosen's declaration, "Mr. Sammy Williams contacted me and informed that Mr. Ardis Williams was in fact his father and that Mr. Ardis Williams had in fact died." Sammy and Mr. Roosen met at the 35th Place property. Sammy was driven to the property by a person named Kevin Roby. Sammy said he wanted to sell the property. During this conversation, Mr. Roby also stated that Sammy had other properties available including the Manhattan Place property.

Sammy sold the Manhattan Place property to Mr. Roosen. Mr. Roosen then transferred his interest to Trustee Properties, LLC. Mr. Roosen denied acting as an agent for either Mr. Behrend or Trustee Properties, LLC. Mr. Roosen "had no reason to doubt" that the Ardis who owned the Manhattan Place property was Sammy's father. Mr. Roosen paid the filing fee for the petition for letters of administration filed by Sammy on February 14, 2006 in case No. BP096765 regarding 35th Place. Mr. Roosen also assisted in the preparation of the petition and paid the premium on a $400,000 bond. Mr. Roosen solicited and retained an attorney for Sammy in order to secure the bond.

Mr. Roosen's declaration refers to an affidavit filed by Sammy. In that affidavit Sammy states: "I was not aware [his father] owned 35th Place. However, I was not surprised as my father had owned several properties at one time or another, both in Los Angeles and Louisiana. I did not know where most of them were located because my father had been a very secretive man." As to the Manhattan Place property, Sammy was advised that his mother owned the parcel. Mr. Roosen described the owner as "Willie Mae Williams" which surprised Sammy. The affidavit executed by Sammy states "I was puzzled and told Mr. Roosen that my mother's name was `Lottie' . . . . I was not surprised to learn that I had an unknown stepmother because my father had married and lived with so many women I could not remember all of their names."

In June 2007, Sammy filed a combined opposition to the two special motions to strike. Sammy conceded that he was appointed to the act as administrator of the estates. Sammy's opposition also states, "At the time the purchase agreement was executed, [I] had no authority as the administrator of Willie Mae's estate to sell the 35th place property to Mr. Roosen or anyone else." Sammy opposed the special motions to strike on the ground: Keith has authority to bring the Probate Code section 850 and 859 petitions as the duly appointed administrator; the petitions are seeking to obtain property that belongs to the estates and were not an attempt to chill free speech or the right to petition; Mr. Roosen's participation in making false statements to the court was only part of the conduct at issue in this case; and the actionable conduct was the unprivileged conduct of obtaining by extrinsic fraud improper transfers and sales of estate properties.

Keith opposed the special motions to strike on the grounds: the gravamen of the action is not a communicative act in connection with the court proceedings; the gravamen of the action is wrongfully conducting real estate transactions against the property; the litigation privilege is inapplicable to conduct involving real estate transactions which were effected independent of the probate proceeding; the litigation privilege applies to tort actions; this is an action in probate to recover wrongfully transferred and withheld estate property; and the administrator is seeking to expunge interests which are clouding title to the estates' properties. Also, Keith presented a declaration of his attorney, Deidra L. Stauff. Ms. Stauff declared that an on-line search of records of the California Department of Real Estate shows that Mr. Behrend is a real estate broker. Those online records also demonstrate that Mr. Roosen is a real estate salesperson employed by Mr. Behrend. Ms. Stauff also ordered and received a certified copy of the Certificate of Registered Partnership of Mr....