Filed 4/15/15 Kesselman v. Mayo CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


LYNN N. KESSELMAN,                                                   B249590

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC469517)
         v.

DOVE E. SHUKARTSI MAYO,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Bobbi Tillmon, Judge. Affirmed.


         Richard D. Rome for Plaintiff and Appellant.


         Enenstein Ribakoff Lavina & Pham, Darren S. Enestein and Michael T. Rosenthal
for Defendant and Respondent.


                          _________________________________________
       This matter involves a dispute between Lynn Kesselman and the children of his
late wife, Corrine Shukartsi Kesselman,1 over promises of support made by Corrine to
Lynn during her lifetime. The trial court sustained a demurrer without leave to amend on
the ground that Corrine’s promises did not survive her death. We affirm.
                                          FACTS
       Corrine was married to Moshe “Tony” Shukartsi for 34 years until Tony’s death in
2001. Corrine and Tony had two children, Dove E. Shukartsi Mayo and Elan P.
Shukartsi. Corrine and Tony established the Shukartsi Living Trust on October 18, 1990,
and Corrine executed a will on February 14, 1995. Corrine and Tony amassed substantial
assets during their lives.
       Sometime after Tony’s death, Corrine began a relationship with Lynn.
On December 16, 2005, Corrine signed a “Formal and Irrevocable Personal Grant,”
agreeing to “pay to Lynn Kesselman the sum of $6000 on the first of each month of his
life starting on January 1, 2006.” Corrine and Lynn were married on April 7, 2008. Prior
to their marriage, they executed a premarital agreement on March 31, 2008, which
contained the following relevant provisions:
       1. Lynn and Corrine would establish a charitable organization funded by Corrine
named the “Kesselman Foundation.”
       2. Corrine would pay all reasonable living expenses for Lynn related to their
residence on Burlingame Avenue in Brentwood until “such time as the parties no longer
cohabit by mutual agreement.”
       3. “Promise of Lifetime Payments to Lynn: In consideration for all of the terms of
this Agreement, including the waiver of spousal support, Corrine agrees that in addition
to the $6,000 per month she granted to Lynn in 2005, she will additionally provide to
Lynn an additional $4,000 per month, effective on the first day of the month following
their marriage, whether or not the parties remain married. Should they separate or




1
       For ease of reference, we shall refer to the parties by their first names.

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divorce, this $4,000 per month shall constitute Lynn’s separate maintenance from
Corrine.”
       4. “Except as provided herein, Corrine and Lynn agree that each party waives and
relinquishes to the fullest extent lawfully possible, all right, title and interest, whether
actual, inchoate, vested or contingent, in law and equity, under the laws of any state or
under federal law in the other’s property, income and estate by reason of the proposed
marriage . . . .”
       Corrine died on September 23, 2010, and Dove was appointed as the personal
representative of Corrine’s estate. Thereafter, Lynn and Corrine’s children engaged in
extensive litigation involving the estate, including an unlawful detainer action to force
Lynn to move out of the Burlingame home. That action was settled.
       This lawsuit was brought by Lynn and the Kesselman Foundation on September
13, 2011, after Dove rejected his creditor’s claims against Corrine’s estate for fulfillment
of the promises made by Corrine in the personal grant and the premarital agreement.
Dove demurred to the initial complaint on the grounds it failed to state facts sufficient to
constitute a cause of action and was uncertain because it did not articulate a factual basis
supporting Lynn’s contention that Corrine’s obligations survived her death.
       The trial court sustained Dove’s demurrer without leave to amend on April 17,
2012, finding Lynn failed to satisfy his burden of showing how he could amend the
complaint to state a cause of action. In making its ruling, the trial court relied primarily
on Emanuel v. Emanuel (1975) 50 Cal.App.3d 56 (Emanuel), for the proposition that the
contested provisions in the grant and the premaritial agreement did not survive Corrine’s
death because they contained no express language indicating such intent. Lynn filed a
motion for reconsideration on May 2, 2012. However, the trial court was unaware the
motion had been filed and judgment was entered on May 10, 2012. Finding it lacked
jurisdiction to consider the motion for reconsideration, the trial court suggested Lynn
move to vacate the judgment before seeking reconsideration. Lynn did so pursuant to
Code of Civil Procedure section 473, subdivision (d). The trial court granted the motion



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and vacated the judgment on October 12, 2012. On November 7, 2012, the trial court
granted Lynn’s motion for reconsideration.
       While these events were ongoing, the parties were also engaged in discovery
disputes. Lynn refused to respond to discovery propounded by Dove, arguing it was
merely an end run around the discovery stays implemented in the parties’ other cases and
that it was premature given the pending demurrer. After hearings before a discovery
referee, the referee recommended the trial court grant Dove’s various motions to compel
discovery, including deeming admitted requests for admission which stated Corrine’s
promises under the grant and premarital agreement did not survive her death. The trial
court adopted the discovery referee’s recommendations on November 16, 2012.
       Lynn filed a first amended complaint on December 5, 2012. In it, he abandoned
the claims sought by the Kesselman Foundation. Instead, he sought payment of
reasonable living expenses as specified in the premarital agreement. Lynn alleged “that
the separation of [Lynn] and Decedent occurred by virtue of the death of Decedent.
[Lynn] further alleges that the separation was not by mutual agreement, for obviously
[Lynn] did not ‘consent’ to the death of his wife.” Although Lynn alleged the payment of
his living expenses relative to the Burlingame property ceased in violation of the terms of
the premarital agreement, he acknowledged “those payments ceased by mutual agreement
pursuant to the settlement of the unlawful detainer action…”    Lynn also demanded the
continued payments of $6,000 under the grant and $4,000 under the premarital
agreement.
       Dove again demurred on the ground Corrine’s promises to Lynn in the grant and
premarital agreement did not survive her death under Emanuel. Alternatively, she argued
it was deemed admitted that Lynn was not entitled to any future payments after Corrine’s
death. The trial court sustained the demurrer without leave to amend, finding the
admissions established Lynn was not entitled to any payments after Corrine’s death. The
trial court further held the first amended complaint failed to overcome the deficiency
articulated in Emanuel. That is, neither the grant nor the premarital agreement expressly



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stated the payments to Lynn survived Corinne’s death. Judgment was entered on April
25, 2013, and Lynn timely appealed.
                                      DISCUSSION
       On appeal, Lynn challenges the trial court’s order sustaining the demurrer based
on the matters deemed admitted. Lynn further argues the trial court erred in ruling that
his rights under the premarital agreement and the grant were terminated by Corrine’s
death. We find no merit to Lynn’s arguments.
I.     Trial Court Properly Used the Matters Deemed Admitted to Support
       its Ruling
       While briefing on the demurrer to the initial complaint was ongoing, Dove served
discovery on Lynn. Among several interrogatories and requests for production of
documents, Dove also requested Lynn admit the following:
       “Admit that YOU were not entitled to continued PAYMENT under the GRANT
after CORRINE’S Death.”
       “Admit that YOU were not entitled to continued PAYMENT under the
PREMARITAL AGREEMENT after CORRINE’S Death.”
       “Admit that YOU were not entitled to continued PAYMENT of YOUR living
expenses relative to the BURLINGAME PROPERTY after the death of CORRINE.”
       When Lynn failed to provide responses, Dove moved to compel them. The parties
were referred to a discovery referee and a hearing was held on March 9, 2012. Lynn
argued that discovery was premature until a final ruling on the demurrer. Lynn also
asserted Dove was attempting to circumvent orders staying discovery in the other cases
between the parties by serving discovery in this case. The discovery referee
recommended granting the motion to compel, including granting the request for
admissions. The referee and the parties acknowledged that if the demurrer to the initial
complaint was sustained without leave to amend, as the trial court’s tentative indicated,
the recommendation would be moot. The trial court adopted the discovery referee’s
recommendations and findings as its decision on November 16, 2012, after it granted
Lynn’s motion for reconsideration. In ruling on the demurrer to the first amended

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complaint, the trial court found “[t]he admissions conclusively establish that plaintiff is
not entitled to any further payments under either the Grant or the Premarital Agreement
after Corrine’s death.”
       Lynn challenges the trial court’s decision to adopt the discovery referee’s
recommendation and use the admissions as a basis to sustain the demurrer without leave
to amend. He argues he filed responses to the requests for admission in November 2012,
“albeit [eight months] late,” and that he should be allowed to litigate his case on the
merits. Under the discovery rules, a trial court “shall” make the requested order for
deemed admissions, unless it finds that responses have been served before the hearing on
the motion. (Code Civ. Proc. § 2033.280; Allen-Pacific, Ltd. v. Superior Court (1997) 57
Cal.App.4th 1546, 1550-1552, 1556-1557, disapproved on other grounds in Wilcox v.
Birtwhistle (1999) 21 Cal.4th 973, 983 fn. 12.) Thus, there was no basis to allow Lynn’s
tardy responses to invalidate the referee’s recommendations. Lynn’s responses were
served eight months after the hearing before the discovery referee. Neither did Lynn
move to withdraw or amend the deemed admissions. (Wilcox v. Birtwhistle, supra, 21
Cal.4th at pp. 978-979.) In any case, as we discuss below, there is no merit to Lynn’s
complaint.
       Lynn also contends the trial court had the discretion to “determine the scope and
effect” of the admissions, citing to Fredericks v. Kontes Industries, Inc. (1987) 189
Cal.App.3d 272, 278 (Fredericks) and Milton v. Montgomery Ward & Co., Inc. (1973) 33
Cal.App.3d 133,138. Unlike those cases, however, Lynn fails to explain, and we do not
see, how the trial court could have interpreted the admissions differently to save the first
amended complaint. He also fails to explain why the trial court should have done so. We
find the trial court did not abuse its discretion in using the admissions as a basis to sustain
the demurrer. (Fredericks, supra, 189 Cal.App.3d at p. 278.)
II.    The Terms of The Grant and Premarital Agreement Do Not Survive
       Corrine’s Death
       Even if we were to ignore the consequences of the deemed admissions, the grant
and the premarital agreement do not survive Corrine’s death. Lynn reads the documents

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otherwise. He contends they are unambiguous and clear: Corrine intended the payments
to Lynn to continue for his lifetime. We, however, do not view this statement to include
a statement indicating the payments were to continue past Corinne’s death.
       We review the order sustaining the demurrer de novo, exercising our independent
judgment to determine whether a cause of action has been stated under any legal theory.
(Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 788.) The judgment will
be affirmed if the allegations fail to plead an essential element or clearly disclose some
defense or bar to recovery. (Brown v. Crandall (2011) 198 Cal.App.4th 1, 8.) “In
determining these issues, we accept as true all facts properly pleaded or subject to judicial
notice, but not contentions, deductions, or conclusions of fact or law. [Citation.]” (Ibid.)
       Section 1612 of the Family Code permits parties to a premarital agreement to
contract with regard to “[t]he disposition of property upon separation, marital dissolution,
death, or the occurrence or nonoccurrence of any other event.” (Fam. Code, § 1612,
subd. (1)(3).) “Insofar as an antenuptial agreement relates to the disposition of the
property of the respective parties, and does not seek to alter support obligations imposed
by law, it will be upheld.” (In re Marriage of Higgason (1973) 10 Cal.3d 476, 485.)
       We find Emanuel, instructive in this case. In Emanuel, the wife received a
property settlement which included the following provision: “‘[husband] promises and
agrees to pay to [wife] for her support and maintenance and as alimony, the sum of Four
Hundred ($400.00) Dollars per month, commencing on the fifteenth day of October,
1957, and continuing thereafter on the fifteenth day of each succeeding month until the
death or remarriage of [wife].’” (Emanuel, supra, 50 Cal.App.3d at p. 57, emphasis
added.) The settlement agreement also provided, “‘[a]ll of the covenants, provisions,
conditions, and agreements in this instrument contained shall apply to and be binding and
obligatory upon, and shall inure to the benefit of not only the parties hereto but also their
respective heirs, executors, administrators, and assigns.’” (Id. at p. 58.)
       The husband died in 1974 and the wife filed a claim against his estate for $69,000,
an estimate of what she would have received given her life expectancy. When the claim
was rejected, she commenced an action to enforce it. (Emanuel, supra, 50 Cal.App.3d at

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p. 58.) The trial court sustained the executors’ demurrer on the complaint. (Id. at p. 59.)
Relying on Civil Code section 139,2 the appellate court held that, in the absence of
express language which demonstrated the parties intended for the promise to survive the
husband’s death, the strong legislative policy of terminating spousal support payments on
the death of the obligor prevailed. It refused to allow the wife to offer extrinsic evidence
of the intent of the parties, noting that “liberality in permitting an ex-spouse, after the
death of the other, to offer evidence that the parties intended a support obligation to
survive the death of the obligor has great potential for mischief.” (Emanuel, at p. 60.)
“If the parties truly intended the result for which [wife] contends it would have been a
simple matter to spell it out in the agreement and to have such provision incorporated in
the decree instead of sowing the seeds of future litigation in the soil of vague ‘boiler-
plate’ language untended by the parties and hidden from the judge.” (Ibid.)
       Lynn contends Emanuel is distinguishable on the ground it involved a divorce
settlement agreement rather than a premarital agreement. We disagree and find the
reasoning in Emanuel applies equally to a prenuptial agreement. In both situations, the
agreement is intended to govern distribution of the parties’ assets upon death or divorce.
This is embodied in the provision, to which Lynn agreed, specifying that the parties each
waive and relinquish all rights in the other’s estate. The legislative policy identified in
Emanuel terminating spousal support payments on the death of the obligor has been in
place since 1951. We decline to thwart this long-standing policy in this case. That the
premarital agreement indicated it was for Lynn’s lifetime does not mean the parties
intended its terms to survive Corrine’s death. Instead, there is no express term indicating
such an intent. Thus, absent an express provision that the payments are to survive
Corinne’s death, they do not.


2
       Civil Code section 139 was renumbered to section 4801, subdivision (b) in 1969,
and then was continued to Family Code section 4337 in 1993 without substantive change.
Current Family Code section 4337 reads: “Except as otherwise agreed by the parties in
writing, the obligation of a party under an order for the support of the other party
terminates upon the death of either party or the remarriage of the other party.”

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       Similarly, there is no language in the grant that indicates Corrine intended the
$6,000 payment to continue past her death. Lynn has failed to provide any legal support
for the proposition that the grant survived Corrine’s death simply because it stated it was
for his lifetime. Rather, the Emanuel court’s reasoning applies to the grant—liberality in
permitting Lynn to offer evidence that Corrine intended a support obligation to survive
her death has “great potential for mischief.” (Emanuel, supra, at p. 60.) This is
particularly true when Corrine’s will does not provide for Lynn. It instead specifies she
has “intentionally and with full knowledge omitted to provide for any of my heirs living
at the time of my death.” “This court has neither the power to make for the parties a
contractual arrangement which they themselves did not make nor to insert in the
agreement language that appellants now wish were there. [Citations.]” (Sayble v.
Feinman (1978) 76 Cal.App.3d 509, 515.)
                                     DISPOSITION
       The judgment is affirmed. Respondent to recover her costs on appeal.




                                                        BIGELOW, P.J.
We concur:


                     RUBIN, J.




                     GRIMES, J.




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