Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County Super. Ct. No. A227746, Leonard Baumgarten, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Sterling Scott Winchell, Dominic E. Rainone, Carter, Dougherty & Keily and Scott N. Carter for Objector and Appellant.
Anker, Reed, Hymes, Schreiber & Cohen, Martin S. Reed and Douglas K. Schreiber for Petitioner and Respondent.
OPINION
SILLS, P. J.
Marlene Magarelli, executor of the estate of Isaac Sargiss, appeals from the order of the probate court denying her motion to abate a petition by Frieda Sargiss. We find the order is a nonappealable interim order; accordingly, we dismiss the appeal.
FACTS
Isaac Sargiss died on March 25, 2004 in Orange County. In January 2005, decedent’s ex-wife, Frieda Sargiss, filed a creditor’s claim in Isaac’s estate for an amount “in excess of $5,000,000.” Frieda claimed her 30-year marriage to Isaac ended in divorce on May 21, 1998 in the state of New York. After Isaac’s death, Frieda discovered that “the Decedent both before and after their divorce fraudulently transferred, concealed and conspired with others to hide and conceal from [Frieda] assets of their 30-year marriage.” She alleged Isaac conspired with his brother and other family members to conceal Isaac’s ownership of stock in Panrad Corporation and to “move[] significant amounts of monies either out of the country or into the names of others . . . so he would not have to reveal [the assets] in his dissolution proceedings.”
Frieda’s creditor’s claim was denied in February 2005, and in March 2005 she filed a civil action in Orange County Superior Court against the estate based on the creditor’s claim (Frieda Sargiss v. Marlene Magarelli, executor (05CC04406)). A few months later, she filed a civil action against the estate and the alleged conspirators in Westchester County, New York (where the divorce proceedings were held), seeking damages for the fraudulent concealment of assets during the divorce.
In October 2006, Frieda filed a petition in the estate proceeding under Probate Code section 850 to establish the estate’s claim to real property Isaac had owned in Dana Point. The petition alleged that Isaac had placed the Dana Point property into a “Qualified Personal Residence Trust” (QPRT) (Int.Rev. Code § 2702(b)) in December 2000. The QPRT, which was irrevocable, provided it would terminate after seven years, at which time the property would be distributed to Isaac’s daughter, Alina Sargiss. If Isaac died before then, however, the QPRT would terminate at the time of his death and the property would be distributed to his estate. The petition claimed that after Isaac’s death, the attorney who drafted the Trust, Robert Oushalem, “substituted the page of the QPRT which reflected the seven-year term with a revised page reflecting a three-year term,” which resulted in the trust terminating before Isaac’s death. In June 2004, the trustee of the QPRT transferred the property to Alina.
All statutory references are to the Probate Code unless otherwise specified.
The petition alleged both Alina and Oushalem had admitted these acts in discovery undertaken in Frieda’s Orange County Superior Court case, but Alina refused to return the property to the estate. The petition alleged “Alina Sargiss and Robert Oushalem have acted in bad faith, wrongfully taken, concealed and encumbered the property . . . and are liable for twice the value of the Real Property recovered by this action.”
The Executor filed a motion to abate the petition, arguing abatement was mandatory under Probate Code section 854 because the subject matter of the petition was the same as that of the pending civil actions. The probate court denied the motion, and the Executor appeals.
DISCUSSION
The right of appeal is purely statutory. “[N]o appeal can be taken except from an appealable order or judgment, as defined in the statutes and developed by the case law . . . .” (Lavine v. Jessup (1957) 48 Cal.2d 611, 613; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 2:15, p. 1-14.) An order made under the Probate Code is appealable only if it is listed in section 1300. Section 1300 lists as appealable an order “[a]djudicating the merits of a claim made under Part 19 (commencing with Section 850) of Division 2.” (§ 1300, subd. (k).)
Section 850 gives the probate court jurisdiction to adjudicate adverse claims to estate property. As relevant here, the section provides that “the personal representative or any interested person” may petition for a court order “[w]here the decedent while living is bound by a contract in writing to convey real property or to transfer personal property and dies before making the conveyance or transfer and the decedent, if living, could have been compelled to make the conveyance or transfer”; “[w]here the decedent while living binds himself or herself or his or her personal representative by a contract in writing to convey real property or to transfer personal property upon or after his or her death and the contract is one which can be specifically enforced”; “[w]here the decedent died in possession of, or holding title to, real or personal property, and the property or some interest therein is claimed to belong to another”; or “[w]here the decedent died having a claim to real or personal property, title to or possession of which is held by another.” (§ 850, subd. (a)(2).) However, the court must abate the petition “[i]f a civil action is pending with respect to the subject matter of a petition filed pursuant to this chapter and jurisdiction has been obtained in the court where the civil action is pending prior to the filing of the petition . . . .” (§ 854.)
The Executor points out the probate court’s refusal to abate the petition amounted to a determination that the petition’s subject matter was not the same as the pending civil actions. She argues this determination was an adjudication on the merits of her affirmative defense of abatement, thus qualifying as an appealable order under section 1300, subdivision (k). We disagree.
Part 19 of Division 2 of the Probate Code consists of sections 850 through 859. Section 850 deals with the subject matter of the petition, and the remaining sections deal with the logistics of adjudicating the petition, i.e., notice of hearing (§ 851), continuances (§ 853), and the nature and effect of the order authorizing a transfer (§§ 857). A plain reading of these sections compels the conclusion that “the merits of a claim made under . . . Section 850” means a resolution of the claim to adverse title made in the petition, not the decision whether to abate the petition proceedings.
As with any nonappealable interim order, the order denying abatement can be reviewed upon an appeal from the order determining whether the estate should have title to the Dana Point property. This procedure was followed in Conservatorship of Pacheco (1990) 224 Cal.App.3d 171. There, George Jr. filed a civil action against his father, George Sr., for specific performance of an alleged agreement between himself and his parents to transfer the parents’ home to George Sr. and George Jr., as joint tenants after the mother’s death. Subsequently, a conservatorship was established for George Sr., and the conservators filed a petition under the predecessor to section 850 (former § 2525) to recover cash the parents transferred to George Jr. before the mother’s death. George Jr. filed a motion to abate the petition based on the pendency of his civil action. The probate court denied the motion because it determined the two actions involved different parties and different issues. It then adjudicated the issues raised in the petition and ordered George Jr. to return the disputed money to his father. (Id. at p. 175.)
George Jr. appealed from the order adjudicating the petition, claiming the probate court erroneously denied his motion to abate the petition. The appellate court agreed, finding section 2525 did not require “precise identity of parties and causes of action between the two actions.” Because the two actions concerned the same subject matter, the petition had to be abated. (Conservatorship of Pacheco, supra, 224 Cal.App.3d at p. 177.)
If the Executor here is dissatisfied with the probate court’s resolution of the merits of the petition, she may appeal from that order and then raise the refusal to abate the petition. But the order refusing to abate the petition is not a separately appealable order.
DISPOSITION
This appeal from the probate court’s order refusing to abate the petition is dismissed. Respondent is entitled to costs on appeal.
WE CONCUR: O’LEARY, J., ARONSON, J.