Filed 3/15/13 Beebe v. Sells CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



DEBORAH BEEBE, Individually and as                                  D058698
Successor in Interest, etc.,

         Plaintiff, Cross-defendant and
         Appellant,                                                 (Super. Ct. No. 37-2009-00093754-
                                                                    CU-OR-CTL)
         v.

RICHARD SELLS, Individually and as
Trustee, etc.,

         Defendant, Cross-complainant
         and Respondent.



         APPEAL from a judgment of the Superior Court of San Diego County, Jay M.

Bloom, Judge. Affirmed.



         In this dispute between siblings, the trial court found the plaintiff lacked standing

to assert claims on behalf of her deceased mother. We agree and affirm the trial court's

order dismissing the plaintiff's claims.
                  FACTUAL AND PROCEDURAL BACKGROUND

1.     Acquisition of Property

       Plaintiff, cross-defendant and appellant Deborah Beebe (Deborah) and her brother,

defendant, cross-complainant and respondent Richard Sells (Richard), are the only

children of Julie Sells (Julie) and Stephen Sells (Stephen). Julie and Stephen are now

both deceased.

       While they were alive, Julie and Stephen made gifts of money to both Deborah

and Richard, which each child used as down payments on real property they each

acquired. In each instance, one of the parents was added to the deed by which the

property was acquired as a joint tenant with the right of survivorship. Thus, Deborah

acquired a duplex in the 1980's in Oregon with a down payment provided by her parents,

and Stephen was named in the deed as a joint tenant. When Stephen later died, Deborah

became the sole owner.

       Richard acquired two pieces of property in a similar manner: a Lemon Grove

apartment complex and an office building on West Redwood Street in San Diego. When

Richard acquired the Lemon Grove apartment complex, in addition to Stephen, Deborah

was also named as a joint tenant. When Stephen died, Richard and Deborah remained on

the deed as joint tenants and later, when Richard established a formal estate plan,

Deborah quitclaimed her interest in the apartment complex to Richard.

       When Richard acquired the West Redwood Street office building in 1997, he and

Julie appeared on the grant deed as joint tenants with a right of survivorship. In August

1998, Julie suffered a debilitating stroke which left her unable to speak. Because of her

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fairly profound disability, Richard took over management of Julie's financial and medical

affairs under the terms of a durable power of attorney.

       In 2003, on the advice of an estate planning attorney, Richard obtained from Julie

a quitclaim deed of her interest in the West Redwood Street property. On the same day

Julie quitclaimed her interest in the property to Richard, Richard quitclaimed his interest

in the building to his inter vivos trust.

       In 2006, Julie passed away.

2.     Litigation

       In August 2009, Deborah filed a lawsuit against Richard. Deborah alleged causes

of action for financial elder abuse, conversion, fraud, quiet title, an accounting,

constructive trust, and a determination under Probate Code section 259 that by virtue of

his improper acts Richard be deemed to have predeceased his mother. Deborah's claims

related to the Lemon Grove apartment complex, the West Redwood Street office building

and Richard's management of Julie's financial affairs following Julie's stroke. Richard

filed a cross-complaint in which he sought to quiet title to the Lemon Grove and West

Redwood Street properties.

       Prior to trial, Deborah dismissed her claims related to the Lemon Grove apartment

complex. Both parties waived their right to a jury. At trial, both Deborah and Richard

testified about their parents, their acquisition of real estate, and their mother's condition

following her stroke.

       Following the trial, the trial court issued a statement of decision in which the trial

court found that Deborah lacked standing to assert claims on her mother's behalf and that

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in any event her claims lacked merit.

                                        DISCUSSION

       At the time of trial, all of Deborah's claims against Richard were derivative claims

based on Deborah's allegations that Richard had unlawfully acquired real and personal

property which belonged to Julie. In general, the personal representative of a decedent's

estate has standing to pursue any claims which survived the decedent's death. Code of

Civil Procedure section 377.30 provides in pertinent part that an action on such surviving

claims "may be commenced by the decedent's personal representative or, if none, by the

decedent's successor in interest." (Italics added.)

       Where there is no personal representative, Code of Civil Procedure sections

377.10 and 377.11 provide alternative standing to the successors in interest of a deceased

person. The standing provided by Code of Civil Procedure sections 377.10 and 377.11 is

limited to either all of the beneficiaries under a decedent's will or all of the decedent's

heirs under Probate Code sections 6401 and 6402. (Code Civ. Proc., §§ 377.10 &

377.11.)1 As the trial court noted, if Deborah was successful in having Richard deemed

to have predeceased his mother under Probate Code section 259, she would be the sole

heir and that possibility would provide her with standing to pursue her elder abuse

claims. (See Estate of Lowrie (2004) 118 Cal.App.4th 220, 230-231.)

       However, the alternative standing provided to legatees and heirs under sections

377.10 and 377.11 is subject to the further requirement that the plaintiff file a declaration


1      All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
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which states either that there is no proceeding for administration of the decedent's estate

pending in California or that there is a final probate court order distributing the cause of

action to the plaintiff. (§ 377.32, subd. (a)(3), (4).) This procedural limitation on the

alternative standing provided by sections 377.10 and 377.11 is self-evidently necessary to

prevent conflicting orders and judgments as well as interference with a probate court's

administration of an estate where a decedent's estate is in fact subject to pending probate

proceedings. The requirement is also consistent with the express terms of section 377.30,

which provides standing to a decedent's legatees or heirs, but only if the decedent has no

personal representative.

       Deborah did not file a declaration meeting the requirements of section 377.32 at

any point during litigation of her claims in the trial court. While we agree with the court

in Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1523-1524, that the requirements of

section 377.32 are in the nature of a plea in abatement and may in theory be cured at any

time (see 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1140, p. 566), because the

record here shows the trust proceeding was pending at the time of trial and thus the

possibility of conflicting determinations of Deborah's claims and interference with

administration of the trust still existed, the trial court could properly conclude Deborah

would not be able to file the declaration required by the statute.2 Accordingly, the trial



2     We note that the parties did not present any evidence in the trial court with respect
to whether any cause of action against Richard was the property of Julie's inter vivos trust
or whether the claims Deborah made against Richard were related to trust property. If
they were, such claims were the subject not only of the requirements of Code of Civil
Procedure section 377.32, but also of the exclusive jurisdiction of the probate court. (See
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court did not err in finding Deborah did not have standing.

                                      DISPOSITION

       The judgment is affirmed. Richard to recover his costs of appeal.




                                                                      BENKE, Acting P. J.

WE CONCUR:


                  McDONALD, J.


                         IRION, J.




Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 429; Prob. Code, § 17000, subd.
(a) [probate court has exclusive jurisdiction over actions and proceedings by or against
creditors or debtors of trusts and "[o]ther actions and proceedings involving trustees and
third persons"].)
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