Katzenstein v. Chabad of Poway

• Decision Date: 15 June 2015
• Docket Number: D066340
• Citation: 188 Cal.Rptr.3d 461,237 Cal.App.4th 759
• Court: California Court of Appeals Court of Appeals
• Parties: Bonnie KATZENSTEIN, as Trustee, etc., Plaintiff and Respondent, v. CHABAD OF POWAY, Defendant and Appellant.

237 Cal.App.4th 759

188 Cal.Rptr.3d 461

Bonnie KATZENSTEIN, as Trustee, etc., Plaintiff and Respondent

v.CHABAD OF POWAY, Defendant and Appellant.

D066340

Court of Appeal, Fourth District, Division 1, California.

Filed June 15, 2015

Blumenthal, Nordrehaug & Bhowmik, Norman B. Blumenthal, San Diego, and Kyle R. Nordrehaug for Defendant and Appellant.

Hughes & Pizzuto, Shannon N. Montisano, San Diego, and Anne M. Rudolph, Eureka, for Plaintiff and Respondent.

Opinion

IRION, J.

Respondent Bonnie Katzenstein (Trustee), in her capacity as trustee of the Feinberg Family Trust Agreement dated October 30, 1984, as amended (Trust), filed a petition in probate court (Petition) following the death of Robert Feinberg (Decedent). Decedent was the cosettlor and former cotrustee of the Trust and the named insured in two life insurance policies. In the Petition, Trustee sought: (1) a determination that the Trust is the beneficiary of, and therefore entitled to the proceeds from, one of the insurance policies; and (2) damages against Chabad of Poway (Chabad) for interfering with the payment of that policy's benefits to the Trust. Chabad responded to the Petition by filing a document entitled “Claimant's Objection and Counter Claim [sic ] to Petition filed by Trustee to Determine Ownership of Life Insurance Policy Proceeds” (Objection and Counterclaim).

In an unsigned minute order following summary judgment proceedings initiated by Trustee, the court sua sponte struck Chabad's Objection and Counterclaim on the basis that the Code of Civil Procedure precludes a party from seeking affirmative relief in an answer. Chabad appeals. However, because this unsigned minute order is not an appealable order under either the Code of Civil Procedure or the Probate Code, we lack jurisdiction and will dismiss Chabad's appeal.

I.BACKGROUND FACTS AND PROCEDURE¹

According to the Petition, in 1984 Decedent and his wife executed the documents that established the Trust, and they amended it in 1999 and 2004. Decedent, whose wife had predeceased him, died in August 2012. Upon the death of Decedent, according to the terms of the Trust, Trustee became the sole successor trustee and has remained the sole successor trustee ever since. Trustee alleged that in 1984 Decedent purchased Genworth Life Insurance Company policy No. 00084978 (Genworth policy) and that at all times the Trust was the named beneficiary of the Genworth policy. Trustee sought both a declaration that the Genworth policy benefits belong to the Trust and an award of damages against Chabad for interfering with the payment of the Genworth policy benefits to the Trust as the named insured. (Prob.Code, §§ 850, subd. (a)(3)(A), 17200, 859.)²

In the Objection and Counterclaim, Chabad alleged it is a nonprofit organization that includes inter alia a Jewish synagogue and a senior center.³

Chabad contended that Decedent gave it “an irrevocable pledge” of the death benefits in two life insurance policies—the Genworth policy and Sun Life Financial Life Insurance policy No. 0004097490 (together the Policies)—in exchange for renaming the senior center the “ ‘Robert Feinberg Sunshine Club’ to be operated [by Chabad] after [Decedent's] death by use of the [P]olicies' death benefits.”⁴ To this end, according to the Objection and Counterclaim, Chabad renamed the senior center and publicized Decedent's name in connection with receiving the pledge.⁵ In addition to alleging facts which Chabad contends required the court to deny the relief Trustee seeks in the Petition, Chabad's Objection and Counterclaim also contained affirmative claims for relief against Trustee based on unjust enrichment and breach of contract.

In a response to Chabad's Objection and Counterclaim, Trustee denied the material allegations and affirmatively asserted that any document signed by Decedent purporting to gift the Genworth policy benefits to Chabad was unenforceable because “the signature was obtained by fraud, duress, undue influence or when [Decedent] lacked the capacity to sign such documents.”

Following discovery, Trustee brought a motion for summary judgment or in the alternative “for summary adjudication of the issue of whether the [Genworth policy's] life insurance proceeds are the property of the [Trust].” Chabad opposed the motion, and Trustee filed a reply.

The court issued a lengthy (five-page single-spaced) tentative ruling: (1) denying summary judgment on the basis that the motion did not mention Trustee's claim for damages under Probate Code section 859 ; (2) granting summary adjudication on the basis that, because the Genworth policy designated the Trust as the sole beneficiary, there were no triable issues of material fact as to Trustee's claim that the Genworth policy benefits were the property of the Trust; and (3) sua sponte striking the Objection and Counterclaim on the basis that, in responding to the Petition, Chabad was statutorily precluded from seeking affirmative relief (i.e., the claims against Trustee based on unjust enrichment and breach of contract). In this latter regard (striking the Objection and Counterclaim—the only ruling at issue in this appeal), the court relied on Code of Civil Procedure ⁶ sections 436, subdivision (b), and 431.30, subdivision (c), and applied them to the underlying proceeding according to Probate Code section 1000.⁷

The court entertained oral argument, during which most of the exchange concerned the tentative striking of Chabad's Objection and Counterclaim.⁸ In part, the court described to Chabad's counsel (who stated that he was representing Chabad on a pro bono basis) some of the differences between the procedures in the Code of Civil Procedure and the Probate Code, explaining that claims in probate “need[ ] to be presented properly.” At the conclusion of the hearing, the court confirmed its tentative ruling, explained in detail the bases of its rulings and filed an unsigned minute order (the Order) consistent with the tentative ruling, namely, (1) denying Trustee's motion for summary judgment, because the motion did not deal with Trustee's pending claim for damages; (2) granting Trustee's motion for summary adjudication, because the beneficiary statement in the Genworth policy named the Trust; and (3) sua sponte striking Chabad's Objection and Counterclaim, because it improperly asserted claims for affirmative relief in the response to the Petition.

Trustee gave written notice of entry of the Order, and Chabad timely appealed from the Order.

Prior to briefing, Trustee filed a motion to dismiss the appeal on the basis that an order granting summary adjudication is a nonappealable order. More specifically, Trustee argued that, because the Order did not dispose of the entire matter—e.g., Trustee still had pending a claim for damages against Chabad in the Petition—the Order was interlocutory, and we lacked jurisdiction to hear the appeal. Chabad opposed the motion on two grounds: (1) because the Order “effectively disposed of the entire case,” it was “final and appealable” under section 904.1, subdivision (a)(1); and (2) because the Order adjudicated and denied payment of Chabad's claim, it was appealable under Probate Code section 1300 and, thus, section 904.1, subdivision (a)(10). At the time, we deferred the motion until the merits briefing could be completed, directed the parties' attention to subdivision (d) of Probate Code section 1300 (which makes appealable an order “[d]irecting or allowing payment of a debt, claim, or cost”) and requested the parties “to address in their respective appellate briefing whether the [Order] directed or allowed the payment of a claim.” The parties have discussed the applicability of Probate Code section 1300, subdivision (d) in their merits briefs, and not surprisingly they disagree: Chabad argues the Order is appealable under the statute, and Trustee argues it is not.⁹

Meanwhile, following briefing, on different jurisdictional grounds, we became concerned because the record on appeal does not contain a judgment or signed order of dismissal, only an unsigned minute order. Accordingly, we directed the parties to section 581d¹⁰ —which requires that an order of dismissal be in writing, signed by the court and filed in the action—and asked them to provide supplemental letter briefs addressing the issue whether, in the context of this appeal, an unsigned minute order is an appealable order for purposes of appellate jurisdiction. (Gov.Code, § 68081.) We have received and considered the parties' letter briefs.¹¹

II.BECAUSE AN UNSIGNED MINUTE ORDER IS NOT APPEALABLE, WE LACK JURISDICTION AND MUST DISMISS THE APPEAL

A. Introduction

Appellate courts have jurisdiction over a direct appeal, like the present one, only where there is an appealable order or judgment. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696, 107 Cal.Rptr.2d 149, 23 P.3d 43 (Griset ); Jennings v. Marralle (1994) 8 Cal.4th 121, 126, 32 Cal.Rptr.2d 275, 876 P.2d 1074 (Jennings ) [an appealable order or judgment “is a jurisdictional prerequisite to an appeal”].) “A trial court's order is appealable when it is made so by statute.” (Griset, at p. 696, 107 Cal.Rptr.2d 149, 23 P.3d 43 ; see Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5, 118 Cal.Rptr.3d 571, 243 P.3d 575 [“right to appeal is wholly statutory,” citing § 904.1].)

As we noted ante, except to the extent that the Probate Code provides applicable rules, “the rules of practice applicable to civil actions ... apply to, and constitute the rules of practice in, proceedings under th[e Probate C]ode.” (Prob.Code, § 1000.) Given this background, we begin with the understanding that, in a civil action not under the Probate Code, an order striking an answer and counterclaim is not an appealable order. (Hill v. Wrather (1958) 158 Cal.App.2d 818, 820–821, 323 P.2d 567 [order striking affirmative defenses and counterclaim]; Yandell v. City of Los Angeles (1931) 214 Cal. 234, 235, 4 P.2d 947 [order...