Filed 9/23/13 Lock v. Cunnyngham CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



HELEN LOCK, as Administrator, etc.,                                 D062716

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No.
                                                                     37-2010-00151262-PR-LS-CTL)
DAVID CUNNYNGHAM et al.,

         Defendants and Respondents.


         APPEAL from an order of the Superior Court of San Diego County, Jeffrey S.

Bostwick, Judge. Affirmed.

         Roy M. Doppelt and Associates and Scott C. Soady for Plaintiff and Appellant.

         Dicks & Workman, Joseph G. Dicks and Linda Workman for Defendants and

Respondents.

         Helen Lock, administrator with will annexed of the estate of decedent Robert

Clifford Reed, appeals an order granting the petition for partial distribution of the estate

filed by claimants David Cunnyngham, Kristy Fyffe, Amy Austin, and Mirna

Cunnyngham (together Claimants). That petition, in effect, sought enforcement against
the estate of a judgment enforcing a settlement agreement, the subject of a prior appeal

we decided in Lock v. Cunnyngham (Apr. 25, 2013, D062047 [nonpub. opn.]) (Lock I).

In Lock I, we affirmed, as modified, the trial court's March 22, 2012, judgment ordering

Lock to pay Claimants $91,500 out of property in the estate in the course of

administration. Claimants subsequently filed, and the probate court granted, a petition

for partial distribution from the estate based on that judgment. On appeal, Lock contends

the probate court erred by issuing the order granting Claimants' petition for partial

distribution.

                  FACTUAL AND PROCEDURAL BACKGROUND1

       On April 4, 2010, Reed died testate. Lock was appointed as administrator of his

estate. After Lock rejected their claims against the estate, Claimants filed a wrongful

death action against the estate based on Reed's murder of Mitch and Diane Cunnyngham.

In December 2010, the parties entered into a pretrial settlement agreement in the

wrongful death action that required Lock to convey to Claimants all estate assets after

payment of court-approved administrative expenses. On March 2, 2011, a judgment was

entered reflecting the terms of that settlement agreement.

       On June 2, 2011, Lock filed her first and final account and report of administrator

and petition for settlement, final distribution of insolvent estate and reserve, and statutory

compensation to attorney and administrator (Final Account). She alleged the estate


1      For a more complete discussion of the factual and procedural background in this
case, please refer to our opinion in Lock I. We hereby incorporate that discussion into
this opinion.

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currently had assets with a total value of $1,126,352.37. She requested the probate court

order that the estate be closed, approve the Final Account, and authorize her to distribute

the estate's real property (valued at $365,000) to Claimants and distribute its cash on hand

(approximately $757,852.37) to her for statutory administrator's fees ($25,197.89), her

probate counsel ($25,197.89 for statutory attorney fees and $8,527.50 for extraordinary

attorney fees), her litigation counsel ($68,441.68), Arlette Reed ($1,585.00 for funeral

expenses), and Claimants' counsel for his client trust account ($623,902.41).

       Claimants objected to the Final Account. In general, they asserted that the

proposed payments to Lock, her probate counsel, and her litigation counsel, as well as to

certain other individuals, were excessive and should be reduced. Claimants asked the

probate court to order the immediate distribution of all estate assets, except for the

amounts they contested.

       On July 22, 2011, the probate court issued an order approving the Final Account

for the most part, ordering distribution of real property to Claimants, cash to Claimants'

counsel, and $25,197.89 as statutory attorney fees for Lock's probate counsel, except for

a $155,000 reserve to be held until the remaining issues were resolved. The probate court

also ordered Lock, Claimants, and their counsel to participate in a mandatory settlement

conference with San Diego County Superior Court Judge Jay M. Bloom.

       On August 12, 2011, following settlement negotiations, the parties signed a

settlement agreement and Judge Bloom read into the record the terms of that settlement

agreement. Judge Bloom stated:



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          "I'll indicate I've met with the parties, and we've reached a
          settlement. . . . [¶] It is as follows: $63,500 is to be released from
          the estate reserve of [$]155,000 for all attorney and administrative
          fees. The balance of the reserve, which is [$]91,500, is to go to
          [C]laimants. Claimants hereby agree to waive all objections. And
          Judge Bloom is to keep jurisdiction to enforce the settlement."

However, because of the parties' disagreement regarding the terms of the settlement

agreement, the probate court did not sign a written order enforcing the agreement.

       Claimants thereafter filed a motion to enforce the settlement agreement pursuant

to Code of Civil Procedure section 664.6. They argued the settlement agreement required

Reed's estate to pay them $91,500. Lock opposed the motion, arguing that because the

parties did not know at the time of the settlement that the estate had substantial income

tax liabilities, the settlement should be interpreted as allowing her to pay all

administrative costs, expenses and income taxes before any amounts would be paid to

Claimants.

       On March 2, 2012, after hearing counsel's arguments, Judge Bloom granted

Claimants' motion to enforce the settlement agreement. On March 22, he entered a

judgment after settlement (Judgment) in Claimants' favor. Lock timely filed a notice of

appeal challenging the Judgment. In Lock I, we affirmed the Judgment as modified.

(Lock I, supra, D062047, at p. 17.)

       On April 19, 2012, Claimants filed the instant petition for partial distribution of

the estate and for an order compelling Lock to act. Based on the Judgment, Claimants

requested the probate court order Lock to pay them $91,500. On May 23, the court heard

arguments of counsel and granted the petition. On June 20, the court issued a written


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order (Order) after hearing granting the petition for partial distribution of the estate and

compelling Lock to act. The Order stated:

           "[Lock and her attorney] shall pay Claimants $91,500 within 24
           hours of this Court's ruling on this Petition. Payment is to be in the
           form of a check made payable to [the client trust account of
           Claimants' attorneys]. [Claimants' attorneys] shall deposit said
           check into its client trust account and shall hold said funds therein
           until further order of this Court. Until such further order of this
           Court, [Claimants' attorney] shall not disburse any of said funds to
           any party, attorney, client, Claimant, itself or any other person or
           entity."

Lock timely filed the instant notice of appeal challenging the Order.

                                          DISCUSSION

                                                I

                                   Lock's Contentions on Appeal

       Lock contends the probate court erred by granting Claimants' petition for partial

distribution after the Judgment was entered. Her entire argument in her opening

appellant's brief is as follows:

           "The papers filed in support of the appeal in [Lock I] explain in
           detail that the Judgment erroneously ordered Lock to pay $91,500 to
           Claimants immediately, rather than directing distribution of the
           $155,000 residual in the course of administration and only after
           payment of all other higher priority debts, including the agreed-upon
           $63,500 in administrative expenses, and any and all state and federal
           income taxes. [Citation.] The erroneous language was the sole basis
           for the [Order], which directed Lock to pay $91,500 to Claimants'
           attorneys within 24 hours of the trial court's ruling. As a result,
           Lock was deprived of access to the estate funds needed to pay
           substantial tax liabilities." (Fn. omitted.)

By so arguing, Lock, in effect, incorporates her appellate briefs in Lock I and relies solely

on those briefs and their arguments in contending the probate court erred by issuing the

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Order involved in this appeal. Because in our Lock I opinion we rejected the substantive

arguments Lock raised in that appeal and affirmed the Judgment as modified, we likewise

must reject those same arguments raised in the context of this appeal.2 Because the

doctrines of law of the case, res judicata, and/or collateral estoppel (or issue preclusion)

apply to the questions of law we decided in Lock I, we must follow our prior decisions in

this matter and cannot reach contrary conclusions on the same issues raised in this appeal.

(See, e.g., Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491; Water Replenishment

Dist. of Southern California v. City of Cerritos (2012) 202 Cal.App.4th 1063, 1071;

Santa Clarita Organization for Planning the Environment v. County of Los Angeles

(2007) 157 Cal.App.4th 149, 156; Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425,

434; Daar & Newman v. VRL International (2005) 129 Cal.App.4th 482, 489; Nathanson

v. Hecker (2002) 99 Cal.App.4th 1158, 1162; Risam v. County of Los Angeles (2002) 99

Cal.App.4th 412, 420.) Accordingly, Lock has not carried her burden on appeal to show

the probate court erred by issuing the Order.

       As we concluded in Lock I, to the extent Lock repeats her argument that the

probate court cannot order her to distribute estate assets (e.g., $91,500) to Claimants

before the estate's income taxes are paid, she has not carried her burden on appeal. In any



2      We decide this appeal based on these grounds and reject Claimants' argument that
Lock's appeal of the Order is "moot." The appeal is not technically moot because there
has been no subsequent event that would preclude us from addressing the issues in this
appeal and/or rendering effective relief. (See, e.g., Building a Better Redondo, Inc. v.
City of Redondo Beach (2012) 203 Cal.App.4th 852, 864-865; Eye Dog Foundation v.
State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.)

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event, at the time of the Order, there had not yet been any final account and report and/or

petition for final distribution approved by the probate court. Accordingly, it appears the

probate court has yet to decide the issue of income tax liabilities of the estate and any

statutory prohibitions against distributions of estate assets until those income taxes are

paid. As we concluded in Lock I, "[i]n the event the probate court determines there are

insufficient estate assets to pay both the estate's tax liabilities and Claimants' $91,500, the

appropriate remedy for the deficiency will be a matter for the probate court to determine

in the first instance. It is not a matter for us to decide in this appeal." (Lock I, supra,

D026047, at p. 16, fn. 6.)

                                       DISPOSITION

       The order is affirmed. Claimants are entitled to costs on appeal.




                                                                              McDONALD, J.

WE CONCUR:


HALLER, Acting P. J.


O'ROURKE, J.




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