Filed 10/19/15 Pippins v. Estate of Christine Young CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


KATHY PIPPINS,
         Plaintiff and Respondent,
                                                                     A142022
v.
ESTATE OF CHRISTINE YOUNG,                                           (San Francisco County
                                                                     Super. Ct. No. CGC10501108)
         Defendant;
DAVID JAH,
         Movant and Appellant.


         David Jah (appellant) appeals from the trial court’s order denying his motion to set
aside the interlocutory judgment in this partition action. We affirm.
                                                  BACKGROUND
         We recite only the background relevant to this appeal. In 2010, Kathy Pippins
(respondent), in her capacity as administrator of the Estate of Mary Elizabeth Pippins
(Pippins Estate), filed this partition action against the Estate of Christine Eileen Young
(Young Estate). The complaint alleged the Pippins Estate and the Young Estate were
both owners of certain real property in San Francisco (Property) and sought a partition by
sale. Teal Jaa (Jaa), in her capacity as administrator of the Young Estate, filed an answer.
Jaa was initially represented by counsel but in January 2012 her counsel withdrew
without substituting new counsel.




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       In December 2012, appellant, an heir to the Young Estate, filed a motion to be
added as a defendant. In a January 2013 order, the trial court construed the motion as one
seeking intervention and denied it.
       Trial was held in January 2013. Jaa appeared for the Young Estate without
counsel. An interlocutory judgment issued, ordering the Property partitioned by sale and
appointing a partition referee. In March 2013, appellant filed a motion to vacate the
January interlocutory judgment on the ground that Jaa could not act on behalf of the
Young Estate while unrepresented by counsel. Respondent stated her position that
appellant lacked standing to set aside the interlocutory judgment but agreed the
interlocutory judgment should be voided. The trial court found appellant lacked standing
and set aside the interlocutory judgment based on respondent’s arguments and brief. The
order set a new trial date of July 15, 2013. Both Jaa and appellant were served with a
copy of this order.
       At the July 2013 trial, no appearance was made on behalf of the Young Estate.
Following trial, an interlocutory judgment issued directing the Property be partitioned by
sale and appointing a partition referee. Jaa was served with notice of the interlocutory
judgment.
       In June 2014, appellant filed a motion to set aside and vacate the July 2013
interlocutory judgment. The trial court denied the motion, and this appeal followed.
                                      DISCUSSION
       Appellant sought to set aside the interlocutory judgment on the ground that it was
the result of extrinsic fraud or mistake or, alternatively, void.1 (Gibble v. Car-Lene
Research, Inc. (1998) 67 Cal.App.4th 295, 314–315 (Gibble); Civ. Proc. Code, § 473,

1
  For the first time in his reply brief, appellant attempts to “supplement[] his appeal” to
include the trial court’s denial of his motion to intervene, and claims to appeal from the
trial court’s denial of a motion he filed to shorten the time in which to hear his motion to
set aside the interlocutory judgment. We decline to consider these belated arguments.
(Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th
847, 894, fn. 10 [“ ‘ “points raised in the reply brief for the first time will not be
considered, unless good reason is shown for failure to present them before” ’ ”].)


                                             2
subd. (d).)2 “ ‘Extrinsic fraud occurs when a party is deprived of his opportunity to
present his claim or defense to the court, where he was kept in ignorance or in some other
manner fraudulently prevented from fully participating in the proceeding. [Citation.]
Examples of extrinsic fraud are: concealment of the existence of a community property
asset, failure to give notice of the action to the other party, convincing the other party not
to obtain counsel because the matter will not proceed (and it does proceed).’ ” (Gibble,
supra, at p. 315.) A judgment is void when, for example, “ ‘the court lacked personal or
subject matter jurisdiction or exceeded its jurisdiction in granting relief which the court
had no power to grant.’ ” (Sindler v. Brennan (2003) 105 Cal.App.4th 1350, 1353.)
         As an initial matter, respondent challenges appellant’s standing to appeal. We will
assume, without deciding, that appellant has standing to appeal. (See Padres Hacia Una
Vida Mejor v. Davis (2002) 96 Cal.App.4th 1123, 1129 [assuming standing to appeal
“[f]or purposes of this decision”].)3
         Respondent does not challenge the order’s appealability, and we agree that it is
appealable. (§ 904.1, subd. (a)(9) [“interlocutory judgment in an action for partition


2
    All undesignated section references are to the Code of Civil Procedure.
3
  We note that while appellant does not dispute that a one-half interest in the Property
belongs to the Young Estate, he points to language in an appellate decision in the Pippins
Estate probate case stating he personally holds title to this one-half interest. The sole
issue in that appeal was whether the other one-half interest belonged to the Pippins Estate
or to appellant. Accordingly, this language has no collateral estoppel effect with respect
to appellant’s interest in the Young Estate’s one-half interest, and appellant does not so
argue. (Creative Ventures, LLC v. Jim Ward & Associates (2011) 195 Cal.App.4th 1430,
1450 (Creative Ventures) [“ ‘Collateral estoppel precludes the relitigation of an issue
only if . . . the issue was actually litigated’ ”].) In addition, although this court noted
appellant was a co-owner in its discussion rejecting his adverse possession claim in the
Pippins Estate probate appeal, it was not dispositive to the issue as we also found “no
evidence that [appellant’s] possession of the house was adverse to the decedent, who had
allowed him to live there.” (See Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1252
[adverse possession must be “adverse,” meaning “ ‘ “the owner has not expressly
consented to it” ’ ”]; Creative Ventures, supra, at p. 1451 [“ ‘ “In order for the
determination of an issue to be given preclusive effect, it must have been necessary to a
judgment.” ’ ”].)


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determining the rights and interests of the respective parties and directing partition to be
made” is appealable]; Solis v. Vallar (1999) 76 Cal.App.4th 710, 713 [order following
interlocutory judgment in partition actions can be appealable order after judgment under
§ 904.1, subd. (a)(2)]; Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61
Cal.App.4th 1384, 1394 [order denying § 473 motion to vacate is appealable order after
judgment]; Cope v. Cope (1964) 230 Cal.App.2d 218, 229 [order denying motion to set
aside judgment based on extrinsic fraud or mistake is appealable order after judgment].)
       Appellant argues the interlocutory judgment was based on extrinsic fraud or
mistake because he was not a party in the partition action. We disagree. “The personal
representative [of an estate] may . . . [d]efend actions and proceedings against the
decedent, the personal representative, or the estate.” (Prob. Code, § 9820.) An heir’s
interest in the estate’s property is represented by the personal representative. (Jay v.
Dollarhide (1970) 3 Cal.App.3d 1001, 1031.) The failure to include or add appellant as a
party did not constitute extrinsic fraud or mistake.
       Appellant also argues Jaa failed to represent his interests in the partition action.
Appellant was served with notice of the July 2013 trial and, by that time, had expressed
concerns about Jaa’s representation of the Young Estate’s interests in his motion to set
aside the prior interlocutory judgment as well as in his objection to a settlement
agreement signed by Jaa (but apparently not enforced). Appellant could have sought, in
the Young Estate probate proceedings, an order directing Jaa to act in a certain way or
removing her altogether as personal representative of the Young Estate. (Prob. Code,
§§ 8500, 8502 [interested persons may petition for removal of personal representative
where “necessary for protection of the estate or interested persons”]; Prob. Code § 9613,
subd. (a) [“On petition of any interested person, and upon a showing that if the petition is
not granted the estate will suffer great or irreparable injury, the court may direct the
personal representative to act or not to act concerning the estate.”].) Accordingly,




                                              4
appellant was not “ ‘fraudulently prevented from fully participating in the proceeding.’ ”
(Gibble, supra, 67 Cal.App.4th at p. 315.)4
       Appellant claims extrinsic fraud due to improper conduct by the attorney
representing the Young Estate at the beginning of the litigation. However, the only
record citation he provides in support of this claim is to the attorney’s motion to be
relieved as counsel, in which the attorney states he and Jaa “have an inability to
communicate effectively.” This does not establish any fraudulent conduct on the part of
the attorney.
       Appellant next claims extrinsic fraud due to the representation by respondent’s
counsel at the interlocutory judgment trial that appellant was a “squatter.” The
characterization of appellant as a “squatter” took place solely in connection with a
discussion with the trial court about which department of the superior court any
subsequent disputes relating to the interlocutory judgment should be brought in.
Moreover, it does not appear that the trial court accepted this representation, later
commenting on “the squatter, as you qualify that person . . . .” Appellant has not shown
the representation—assuming it is fraudulent—had any material impact on the
interlocutory judgment.
       Appellant also contends the interlocutory judgment is void. He appears to argue it
improperly awards an interest in the Property to respondent personally. Appellant quotes
the judgment as finding “ ‘Kathy Pippin’s [sic] is owner of a one half 1/2 interest in the
property.’ ” In fact, the interlocutory judgment finds “Plaintiff is the owner of an
undivided one-half (1/2) interest in the property” (italics added); respondent is the
plaintiff only in her capacity as administrator of the Pippins Estate. The interlocutory
judgment does not award any interest in the Property to respondent personally.
       Appellant targets the portion of the interlocutory judgment granting the partition
referee authority to “take all steps necessary, including the initiation of litigation, to


4
 For the same reasons, we reject appellant’s argument that his exclusion from the
proceedings violated his right to due process.


                                               5
remove the following individuals from the property: [appellant], his minor children and
any other individuals occupying the property.” Appellant contends that, because
pursuant to the trial court’s order he was not a party to the litigation, the trial court “had
no authority to litigate his property rights in his absence, or to authorize [the] partition
referee to remove him and his minor children from the real property.” The interlocutory
judgment does not authorize the referee to remove appellant, but rather authorizes her to
take the steps necessary to do so, including litigation if necessary. The interlocutory
judgment therefore contemplates that a separate proceeding, in which appellant would
have the opportunity to litigate his property rights, would be required before the referee
could in fact remove appellant. Moreover, the order authorizing the referee to take these
steps was appropriate. A partition referee authorized to sell property may perform any
acts necessary to exercise that authority (§§ 873.010, 873.060), and there is evidence in
the record that appellant prevented a previous sale attempt by refusing to allow
prospective buyers to view the Property.
       Appellant raises a number of other arguments in a section of his brief contending
the partition complaint failed to state a cause of action. He also contends the trial court
abused its discretion by appointing Christy Styer as the partition referee. Because
appellant cites no authority that the insufficiency of a complaint and an abuse of
discretion in appointing a partition referee are bases for setting aside a judgment as void
or based on extrinsic fraud or mistake, we decline to consider these arguments.5
                                       DISPOSITION
       The order is affirmed. Respondent shall recover her costs on appeal.

5
 Appellant contends, among other arguments, that the petition failed to state a claim
because it failed to join the personal representative of the Young Estate as a defendant.
Because appellant does not contend on appeal that this renders the interlocutory judgment
void, any such argument is forfeited and we do not consider it. (Kelly v. CB&I
Constructors, Inc. (2009) 179 Cal.App.4th 442, 451-452.) Accordingly, we need not
address respondent’s request that we amend the interlocutory judgment to name the
personal representative of the Young Estate as the defendant rather than the Young
Estate. We express no opinion as to whether respondent can obtain this relief in the trial
court.


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                    SIMONS, Acting P.J.




We concur.




NEEDHAM, J.




BRUINIERS, J.




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