Filed 2/28/13 Estate of Focarino CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


Estate of CONCETTA FOCARINO,
Deceased.

JOHN W. FOCARINO,
                                                                       G046963
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. 30-2010-00396828)
                   v.
                                                                       OPINION
SUSAN C. VOLPÉ,

    Defendant and Appellant.



                   Appeals from an order and a judgment of the Superior Court of Orange
County, Mary Fingal Schulte, Judge; and Daniel J. Didier, Judge (retired judge of the
Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.). Appeal from order dismissed; judgment affirmed.
                   Hershorin & Henry and Jean C. Wilcox for Defendant and Appellant.
                   Law Offices of Lawrence A. Strid, Lawrence A. Strid; Deily Law Firm,
John P. Deily and John P. Glowacki for Plaintiff and Respondent.
              Defendant and appellant Susan C. Volpé (Volpé) and plaintiff and
respondent John C. Focarino (Focarino) are brother and sister and they are in a dispute
over the assets of their deceased mother Concetta Focarino (decedent). Focarino was
named executor of decedent’s will and Volpé claimed to be the trustee of an inter vivos
trust executed by decedent. Volpé filed objections to Focarino’s petition for probate and
Focarino challenged the validity of the trust. The parties ultimately entered into a
memorandum of understanding (MOU) that Focarino claimed settled both matters. When
Volpé claimed to rescind her signature on the MOU Focarino filed a motion under Code
of Civil Procedure section 664.61 seeking to enforce it, which the court did.
              One of the provisions of the order enforcing the MOU was a requirement
that Volpé disburse the proceeds of some bank accounts. When she failed to do so
Focarino filed a motion to amend the order and have a judgment as to the bank accounts
entered to require her to pay the sums.
              Volpé appeals, arguing the order was invalid for several reasons and that
the judgment was improper because there was no provision in the order allowing for her
to be personally liable to pay out the bank account proceeds. Focarino counters, arguing
Volpé did not timely file an appeal from the order and that the judgment was authorized.
We conclude Focarino has the better arguments. Because the appeal from the order is not
timely it must be dismissed. The judgment is affirmed.




              1   All further statutory references are to this code except where otherwise
stated.

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                        FACTS AND PROCEDURAL HISTORY


              Volpé, Focarino, and their brother, Charles Focarino, are the children of
decedent. After decedent died in June 2010, Focarino filed a petition for probate, seeking
to act as the executor. He attached a copy of decedent’s will dated November 1995.
              Volpé filed objections to the petition, claiming, in part, that Focarino had a
conflict of interest because, among other things, he had taken decedent’s jewelry and
refused to return it to the estate and he should not serve without a bond. Volpé pleaded
she was the trustee of decedent’s living trust (trust) dated April 2010, with Volpé,
Focarino, and Charles Focarino as equal beneficiaries. She alleged on information and
belief the purpose of the trust was to “hold” “the proceeds from the sale of [decedent’s]
New York real property.” Volpé also claimed she had deposited those proceeds in two
accounts (credit union accounts) she held in joint tenancy with decedent. There was no
intent to create survivorship rights in Volpé but the credit union accounts were set up
only for convenience. As a result of Volpé’s objections, the court set a mandatory
settlement conference and a trial date.
              In the meantime Focarino filed a petition to determine the validity of the
trust. The petition alleged that at the time decedent executed the trust she was living with
Volpé, who had taken her to a lawyer’s office to sign the trust. It further alleged
decedent had dementia at that time and was not competent to execute the trust. In
addition, it pleaded Volpé exercised undue influence over decedent, with the intent of
controlling all of her assets. It sought an accounting, of the funds in the credit union
accounts.
              The parties attended the mandatory settlement conference with a pro tem
judge. Volpé, having discharged her lawyer, appeared in propria persona. Focarino and
his attorney, John P. Deily (Deily), were present as well as was Charles Focarino. The
three reached a settlement just before lunch time. The pro tem judge could not stay past

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the lunch hour but gave Deily his notes so a written agreement could be prepared. Deily
handwrote the MOU setting out all the agreed terms. The three siblings signed the
document before they left the courthouse.
              The title of the MOU referenced both the trust and the estate of decedent.
Regarding the almost $278,000 in the credit union accounts, Volpé agreed to distribute a
sum certain to the four children of Focarino and Charles Focarino and to pay out the
balance equally to the three siblings. Volpé agreed Focarino would be appointed
executor of decedent’s estate with a $20,000 bond, marshal the estate’s accounts, pay any
debts, and distribute the net proceeds of the estate equally to the siblings. All other
personal property had been distributed, with the exception of decedent’s jewelry, which
the three agreed to divide among themselves. Once these acts were performed, Focarino
would dismiss the challenge to the trust. Except for the obligations set out in the MOU,
the parties released each other from all claims, and agreed to cooperate and perform any
acts necessary to fulfill the terms of the MOU. Volpé and Deily also signed a stipulation
to admit the will to probate with Deily acting as executor.
              Later that afternoon Deily’s paralegal emailed a copy of the MOU and the
pro tem’s notes to Volpé, expressing Deily’s gratitude for Volpé’s help in resolving the
matter and explaining that Deily would send a formal settlement agreement to her the
next week. Volpé responded that she was unable to download the attachments.
              The next day Volpé sent a letter to Deily purporting to rescind her signature
on the MOU. She questioned the “legality” of the MOU based on section 2017.310,
subdivision (a) regarding elder abuse and claimed, among other things, she was sick and
under duress to sign the MOU, and some of the terms were “unfair” and
“unconscionable.”
              Deily filed the stipulation to admit the will to probate and the court did so.
He also filed a motion to enforce the MOU pursuant to section 664.6. Volpé, represented
by counsel, opposed it on several grounds, including that several material terms were not

                                              4
included, the MOU was not intended to be a settlement, she signed it under duress, and
she had effectively rescinded it. After a lengthy hearing the court granted the motion and
signed an order (order) enforcing the MOU. It found there was an agreement with
sufficiently clear provisions and at three separate times ruled there was no duress. The
court ordered Volpé to pay $2,500 in attorney fees. It also retained jurisdiction of the
case for any necessary enforcement.
              Volpé, at this point again representing herself, filed a motion for
reconsideration, claiming the arguments Deily made at the hearing on the motion
contained new evidence. The court denied the motion, finding there were no new facts,
and awarded Focarino $4,350 in attorney fees. Four months after the order was entered,
Volpé’s husband, Thomas Volpé, filed a verified complaint for declaratory relief alleging
that he, Volpé, and decedent had held the money in the credit union accounts jointly and
that after decedent’s death he became the “sole owner” when the money was transferred
to an account held in his name only.
              Seven months later Focarino brought a motion to amend the order based on
Volpé’s failure to pay out the funds from the credit union account and pay the attorney
fees ordered. The court entered a judgment amending the order in favor of Focarino and
Charles Focarino in the sum of almost $101,300, representing the funds in the credit
union accounts, against Volpé, plus prejudgment interest, and attorney fees of $3,590.


                                       DISCUSSION


1. Timeliness of Appeal of Order on MOU
              Focarino claims Volpé’s appeal from the order is not timely and therefore
must be dismissed. He points out that he served a notice of entry of judgment and a file
stamped copy of the order on September 28, 2011 and Volpé did not file her notice of



                                             5
appeal until May 18, 2012. Volpé does not dispute the service and filing dates but asserts
the order was only interlocutory and thus not appealable.
              Pursuant to California Rules of Court, rule 8.104(a)(1)(B), a notice of
appeal must be filed no later than 60 days after service of a notice of entry of judgment or
a file-stamped copy of the judgment and a proof of service. If a notice of appeal is not
timely filed we have no discretion to proceed with the appeal but must dismiss it. (Cal.
Rules of Court, rule 8.104(b).) The term judgment as used in this rule applies to an
appealable order. (Cal. Rules of Court, rule 8.104(e).)
              Section 904.1, subdivision (a)(10) provides a party may appeal “[f]rom an
order made appealable by the provisions of the Probate Code.” Probate Code
section 1300, subdivision (k) authorizes an appeal from an order “[a]djudicating the
merits of a claim made under Part 19 (commencing with Section 850) of Division 2.”
Probate Code section 850, subdivision (a)(3)(A) authorizes “any interested person” to file
a petition seeking a court order “[w]here the trustee is in possession of, or holds title
to, . . . personal property, and the property, or some interest, is claimed to belong to
another.” An “interested person” includes “[a]n heir, devisee, child, spouse, creditor,
beneficiary, and any other person having a property right in or claim against a trust estate
or the estate of a decedent . . . .” (Prob. Code, § 48, subd. (a).)
              Although the parties argue about some broader issues, the essence of this
appeal is Volpé’s agreement and failure to transfer the funds from the credit union
accounts to Focarino, their brother Charles Focarino, and her brothers’ children. These
funds were the proceeds from the sale of real property that was an asset of decedent’s
purported trust, of which Volpé was the alleged trustee. Focarino, as an interested party,
filed a petition to enforce the MOU seeking an order to have the funds in the credit union
accounts distributed.
              Though the stated statutory basis for the petition was section 664.6 and not
Probate Code section 850, the practical effect was the same. It was a petition by another

                                               6
who claimed an interest in the credit union accounts seeking an order to have Volpé, who
had possession of the credit union accounts as a self-entitled trustee, disburse the funds.
This meets all the requirements of Probate Code section 850, subdivision (a)(3)(A) and
was the functional equivalent of it. As such, it was an appealable order pursuant to
Probate Code section 1300, subdivision (k).
              Moreover, under section 664.6, when a motion enforcing a settlement is
granted, the court is authorized to enter judgment thereon. Thus, had the court enforced
the MOU outside of the probate court and entered a judgment, Volpé would have had the
same 60-day time period to appeal. (Cal. Rules of Court, rule 8.104(a)(1)(B).)
              We reject Volpé’s assertion the order was interlocutory and not appealable
because it did not “conclude the probate proceeding.” (Boldface and capitalization
omitted.) Neither Probate Code section 850 nor Probate Code section 1300 requires the
order to have concluded the litigation to be appealable. Probate Code section 1300,
subdivision (k) authorizes an appeal of an order “[a]djudicating the merits of a claim
made under” section 850. Probate Code section 850, subdivision (a)(3)(A) allows a court
to make an order where there is a claim made to recover property held by a trustee.
There is no language about resolution of an entire probate or trust matter.
              Under either Probate Code section 1300 or where there is a judgment after a
motion made under section 664.6, Volpé should have appealed within 60 days after
Focarino served the notice of entry of judgment and accompanying documents. She did
not and the time period for her to do so passed. Therefore the appeal from the order must
be dismissed and we cannot consider any of the arguments she makes challenging its
validity.


2. Validity of Judgment
              Volpé also appealed from the judgment entered resulting from the
amendment of the order. She claims “it was in excess of the terms of the settlement the

                                              7
parties had agreed upon” because it did not contain any “clear” language as to remedies if
she failed or was “unable” to distribute the funds from the credit union accounts,
including personal liability on her part. She maintains that in amending the order and
entering the judgment the court “added a material term” to the order. We are not
persuaded.
              Volpé agreed that the money would be distributed to Focarino’s and
Charles Focarino’s children and the balance to three siblings, and that is what the order
unambiguously provides. The record is unclear as to why she did not comply. The only
information we have is in Thomas Volpé’s declaratory relief action where he alleges he
was one of the owners of the joint tenancy account and now is the sole owner of the
funds. In her verified objections to the petition for probate, Volpé stated she and
decedent were the joint owners of the funds in the credit union accounts; no mention was
made of Thomas Volpé. She also stated she “believe[d]” the accounts were created for
decedent’s “convenience” and not to give Volpé a right to the money as the sole survivor.
              Further, in opposition to the motion to amend the order Volpé made no
mention of Thomas Volpé’s action or that he owns the funds.2 She did not claim she was
not required to make the payments. She did not deny she had access to the credit union
accounts or that Focarino and Charles and their children are entitled to payment as set out
in the order. Nor does she dispute it in her briefs. Rather, she makes a technical
argument the order failed to set out consequences for nonpayment and the court has no
jurisdiction to materially change the terms of the order.




              2   Although in a footnote in the reply brief, Volpé states “title[to the funds in
the credit union accounts] cleared and passed to [Volpé] and Thomas [Volpé] upon proof
of [decedent’s] death by operation of law.” This contradicts, at least inferentially, the
verified statements Volpé made in her challenge to the probate petition.

                                                8
               Thus, except for the unexplained claim of Thomas Volpé that he has
possession of and owns the funds, the evidence before us reveals no reason why Volpé
has not paid and cannot pay out the credit union funds. Obviously the probate court has
no jurisdiction over Thomas Volpé’s action, but neither does it have an obligation to base
a decision as to the funds with his claim in mind. Thomas Volpé’s claim does raise the
inference, however, that Volpé, as the alleged trustee, has not taken proper care of the
funds she agreed were held for the beneficiaries of the purported trust but instead
transferred them to her husband. In any event she is liable to pay the money as ordered.
In amending the order and entering the judgment the court merely gave Focarino a tool to
enforce the order and have the money disbursed. And there is authority for it.
               “[T]he probate court is a court of general jurisdiction [citations] with broad
equitable powers. [Citations.] . . . [It] may apply general equitable principles in
fashioning remedies and granting relief. [Citations.] . . . ‘It will not be questioned that
justice and sound policy require that the estates of decedents be distributed to persons
rightfully entitled thereto and that every concern and endeavor of a probate court should
be to the accomplishment of that purpose.’ [Citations.]” (Estate of Kraus (2010) 184
Cal.App.4th 103, 114.)
               In addition to the equitable powers of the probate court, all courts have
powers to enforce orders. Section 128 gives every court the authority “[t]o compel
obedience to its judgments[ and] orders . . . .” (§ 128, subd. (a)(4).) In addition a judge
has the power “[t]o compel obedience to his [or her] lawful orders as provided in [the
Code of Civil Procedure.]” (§ 177, subd. (2).) Finally, “[w]hen jurisdiction
is . . . conferred on a [c]ourt . . . , all the means necessary to carry it into effect are also
given; and . . . any suitable process or mode of proceeding may be adopted which may
appear most conformable to the spirit of this Code.” (§ 187.)
               Entry of the judgment has nothing to do with the addition of another term to
the order. It is merely a method of enforcing it. And all Volpé has to do is pay out the

                                                 9
funds. That they might be held by her husband should not prove to be an obstacle since,
according to her own verified objection to the probate petition, she had control of the
money and Thomas Volpé was not even on the account.
               We reject Volpé’s arguments about enforcement of the terms of the MOU
itself. As discussed above those claims are barred due to the failure to timely appeal
from the order.


                                        DISPOSITION


               The appeal from the order is dismissed. The judgment is affirmed.
Plaintiff is entitled to costs on appeal.




                                                 THOMPSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



BEDSWORTH, J.




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