Filed 2/11/15 Estate of Thomson CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


Estate of LINDA THOMSON, Deceased.                                   B253895


RICHARD THOMSON, as Special                                          (Los Angeles County
Administrator, etc.,                                                 Super. Ct. No. KP013907)

         Petitioner and Appellant,

         v.

LORRAINE SHERZER,

         Objector and Respondent.



         APPEAL from an order of the Superior Court of Los Angeles County, Reva G.
Goetz, Judge. Affirmed.


         Robert L. Kern and Russell A. Dalton, Jr., for Petitioner and Appellant.


         Lorraine Sherzer, in pro. per., for Objector and Respondent.


                                                       ******
       In this probate proceeding, petitioner Richard Thomson1 appeals from the probate
court’s order denying his petition for the court to make certain determinations. We find
no error and affirm. 
                              FACTS AND PROCEDURE
1. Background Proceedings
       Decedent Linda Thomson was the mother of Cameron Thomson. Cameron and
codefendants were charged in the killing of two teenagers in 2008, when Cameron was a
minor. The parents of the deceased teenagers filed a civil suit naming Cameron and
Linda as defendants, among others (the wrongful death action). The parents of the
deceased teenagers are Lorraine Sherzer and Michael and Pamela Thompson (the
wrongful death plaintiffs).2 Against both Cameron and Linda, the complaint alleged
wrongful death, negligence, and intentional infliction of emotional distress. As to Linda,
the complaint alleged she had negligently supervised Cameron and was also vicariously
liable for his willful acts. The complaint additionally alleged assault and battery against
Cameron.
       Linda tendered the defense of the wrongful death action to her homeowner’s
insurance carrier, USAA Casualty Insurance Company (USAA). When USAA refused to
defend the wrongful death action, Linda filed a suit against USAA for a declaration that
the insurer had a duty to defend and indemnify her (the insurance action). In 2010,
USAA agreed to pay the wrongful death plaintiffs the policy limit of $100,000. In
exchange, they agreed to release their claims against Linda arising from the deaths of
their children and dismiss the wrongful death action against her with prejudice. Linda
also agreed to dismiss the insurance action against USAA.




1      The background of this case requires us to refer to several individuals who have
the surname “Thomson.” To avoid confusion, we will refer to them by their first names.
2      Sherzer is the respondent in this appeal.



                                             2
       Linda died on August 4, 2010, after she agreed to the settlement but before she
could sign the settlement agreements in the insurance action and the wrongful death
action. Linda’s counsel petitioned the probate court to appoint her father, Richard,
special administrator of her estate for the limited purpose of signing the settlement
agreements. The probate court granted the petition and issued letters of special
administration that expired on February 9, 2011.
       Linda’s counsel wrote to the wrongful death plaintiffs and USAA to inform them
of Linda’s death. In pertinent part, he wrote: “First, because of Linda’s death and the
complexity of this case, the release language from the plaintiffs will have to include a
release as to Linda’s son, Cameron. . . . [¶] . . . [¶] Under the terms of the revised
releases, Linda’s estate, which includes Cameron, will forever release and discharge
USAA Casualty, thus eliminating the need for Cameron’s signature on anything. The
plaintiffs would be discharging Linda’s estate, which includes Cameron, which will again
eliminate the need for Cameron to sign anything.”
       USAA responded that, as far as it was concerned, the release of all claims against
USAA had to include Linda, “her estate, Cameron, and any other person or entity acting
or purporting to act on her behalf.”
       The wrongful death plaintiffs’ counsel responded as follows: “I understand that
because of [Linda]’s death, [counsel] wishes to have the settlement agreements revised to
include a release as to Cameron. [¶] I do not believe that [Linda]’s death has any affect
on the necessary releases, and I believe the release presently includes a release of
[Linda]’s heirs arising from her own liability. I do not see why Cameron should be
released as part of the settlement agreement for his own liability and we are not prepared
to release him as part of the agreement that we have already reached.”
       Despite this apparently unresolved disagreement over the scope of the release,
Richard signed the settlement agreements in November 2010 as special administrator for
Linda’s estate. The settlement agreement in the wrongful death action stated the
plaintiffs were releasing and forever discharging “Linda Thomson and USAA Casualty
Insurance Company (including their respective heirs, assignees, representatives, co-

                                             3
insureds, agents, attorneys, officers, directors, employees, parent companies, subsidiaries,
affiliates, guardians, and any other person or entity acting by or through them).” The
wrongful death settlement agreement identified only the wrongful death plaintiffs and
Linda as parties to the agreement. Pursuant to Linda’s motion, the court in the wrongful
death action determined the parties entered into the settlement agreement in good faith.
(Code Civ. Proc., § 877.6.) After that, the wrongful death plaintiffs filed a dismissal as to
Linda only.
       In November 2012, Cameron moved for summary judgment in the wrongful death
action on the ground that the settlement agreement released all the claims against Linda
and him. The wrongful death plaintiffs opposed the motion, arguing the release applied
only to Linda, and Cameron’s liability arose from his independent participation in the
killings, not Linda’s actions. The court denied Cameron’s motion for summary judgment
in January 2013.
2. Petition Giving Rise to This Appeal
       In June 2013, Richard filed the petition now at issue in the instant probate
proceeding. He styled the petition: “Petition [(1)] to terminate proceedings, [(2)] for
approval of waiver of account, [(3)] for a determination that issues raised by settlement
agreements have been resolved, [(4)] for a determination that claims filed are invalid,
[(5)] for a determination that petitioner has no obligation of any kind to any party and
[(6)] such other relief as the court may deem to be appropriate for petitioner and the heir-
at-law of the decedent” (the petition). (Italics added.)
       Richard’s contentions on appeal relate to request No. 3 for a determination as to
the settlement agreements. Specifically, the petition prayed “[f]or orders determining
that the execution of the settlement agreements which [Richard] signed pursuant to the
order of [the probate] court are enforceable according to the terms thereof, including but
not limited to the discharge and release of the heirs-at-law of the decedent as specified in
the terms of the agreement relating to the [wrongful death] action; or, alternatively, in the
event that the terms of the agreement relating to the [wrongful death] action are not
determined to be enforceable, that the Letters of Special Administration of [Richard] be

                                              4
reinstated and the consideration ($100,000, together with interest at the legal rate) be
ordered returned and paid forthwith.” Richard wanted the probate court to determine the
settlement agreement in the wrongful death action released Cameron because he was the
heir and co-insured of Linda. In other words, he wanted the probate court to make the
same determination the court in the wrongful death action had refused to make on
Cameron’s motion for summary judgment.
       The wrongful death plaintiffs filed a response to the petition. They noted they
were not parties to or claimants in the probate proceeding, but they nevertheless asked the
court to deny the orders Richard requested regarding the settlement. They explained
Cameron had already moved in the wrongful death action for the same determination
Richard was seeking, and they sought judicial notice of the summary judgment pleadings
and ruling.
       The probates notes3 for the hearing recommended in pertinent part as follows:
“Recommend deny as to discharge & release of heirs - improper request - terms &
effectiveness of settlement agreement separate from a report of acts of special
administrator [¶] Recommend deny as to ‘reinstate’ letters of special administration -
new petition for appointment required - letters expired 2/9/11.”
       After hearing oral argument from the wrongful death plaintiffs and Richard, the
probate court took the petition under submission. It later issued a minute order stating the
request for an order determining the meaning of the settlement agreement was “denied
with prejudice.” Richard filed a notice of appeal from the minute order.



3      As explained in the California Practice Guide on probate: “[M]any probate
departments have staff attorneys who review all probate pleadings before their respective
hearing dates [citation]. The staff attorneys then issue ‘calendar notes’ (or ‘probate
notes’) indicating whether the pleadings are ‘in order’ (e.g., ‘recommended for approval’
or ‘RFA’) or ‘defective,’ with the reasons usually given. These notes are usually
available to counsel several days prior to the hearing (although precise availability varies
from county to county).” (Ross & Cohen, Cal. Practice Guide: Probate (The Rutter
Group 2014) ¶ 3:538, pp. 3-124.10 to 3-124.11 (rev. # 1, 2014).)


                                              5
                                      DISCUSSION
       On appeal, Richard invites us to interpret the settlement agreement in the wrongful
death action and determine the agreement released the claims against Cameron as well as
those against Linda. We decline the invitation. The probate court denied the request for
such a determination. Richard completely fails to show the court erred in refusing to
decide the issue.
       We indulge all presumptions in favor of the probate court’s correctness, and we
presume it was correct based on any rationale supported by the record. (State Farm Fire
& Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) Richard has the burden of
affirmatively demonstrating error. (Ibid.)
       Richard offers no authority demonstrating the probate court must determine the
meaning of the settlement agreement in the wrongful death action. Nor does he offer a
good reason why the probate court should have done so, as opposed to the court where
the wrongful death action is pending. That action is pending in the San Bernardino
County Superior Court; the parties in that action have begun to litigate the issue in the
summary judgment proceedings there; and, notably, the agreement itself provides that
any action to enforce or interpret the agreement shall be brought in the San Bernardino
County Superior Court. No doubt the court in the wrongful death action is far more
familiar than the probate court with the parties to the agreement and the claims the
agreement purports to settle. It was eminently sensible for the probate court to abstain
from interfering and allow the San Bernardino court to determine the meaning of the
settlement agreement, whether that be through further motion practice or at trial.
       Richard argues the probate court accepted a stipulation from the parties that it
could decide the issue. This occurred at the hearing on the petition. The wrongful death
plaintiffs argued primarily that the probate court had no jurisdiction to make the
requested determination because the issue had to do with claims against Cameron, not
claims against Linda’s estate. They further argued the court could nevertheless look at
the documentary evidence submitted on the summary judgment motion in the wrongful
death action and determine from that evidence that the settlement agreement did not

                                             6
release the claims against Cameron. Accordingly, they agreed “to submit the issue of to
whom the settlement agreement applies” to the probate court.
       Even if they stipulated the probate court could decide the issue, that does not mean
the court was bound to do it, especially when common sense dictated otherwise. The
agreement settled causes of action in the wrongful death action. That action is still
pending. Cameron is asserting a defense in that action based on the release in the
settlement agreement. The court in San Bernardino should ultimately determine the
validity of the defense.
                                     DISPOSITION
       The order is affirmed. Respondent shall recover costs on appeal.




                                                 FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       GRIMES, J.




                                             7
