GOODMAN, J.
Shelly Albert and Craig Albert, as Trustees of the Seymour Albert and Henrietta Albert Revocable Trust (the Trustees), appeal the July 15, 2016 judgment entered against them and in favor of respondent, Robert Dubin (Dubin), following the grant of Dubin's motion for summary judgment. We affirm, determining that the Trustees lacked standing to sue to enforce the 1997 judgment entered in favor of their deceased parents.
On February 27, 1997, the Los Angeles Superior Court entered a stipulated judgment in a civil action brought by Seymour and Henrietta Albert
In 1990 Seymour and Henrietta had created and partially funded the Seymour Albert and Henrietta Albert Revocable Trust (the Trust). At that time, Seymour and Henrietta executed an Assignment of Personal Property document (Assignment).
At the same time as they amended and restated the terms of the Trust, they also each executed a Will. Each Will contained the following devise: "THIRD: I give my entire estate as follows: [¶] 1. I give my estate to the trustees of [the Trust]. . . ."
On June 30, 2015, the Trustees commenced the present action, seeking to enforce the terms of the 1997 Judgment, pursuant to Code of Civil Procedure section 683.050.
In his answer, Dubin alleged several affirmative defenses including "that [the Trustees] lack standing to assert any of the claims" against him.
The parties filed cross-motions for summary judgment, and, following argument thereon, the trial court granted Dubin's motion and took the Trustees' motion off calendar as moot.
The Trustees filed this timely appeal.
The Trustees contend they have standing—as trustees of the Trust—to sue to enforce the 1997 Judgment and that the applicable statute of limitations, Code of Civil Procedure section 337.5, was tolled during Dubin's absence from California. For the reasons set out below, however, the Trustees lack standing to bring the action which is the basis for the present appeal. We therefore do not reach the Trustees' contention regarding the constitutionality of application of Code of Civil Procedure section 351 in this case.
Noting that judgment creditors have the right to sue to enforce a judgment (Code of Civ. Proc., § 683.050), and that Seymour and Henrietta were judgment creditors of Dubin, the Trustees argue that Code of Civil Procedure section 686.010 entitles them to sue to enforce the 1997 Judgment. For the reasons now discussed, the Trustees fail to recognize that because the estates of Seymour and Henrietta were never probated, the 1997 Judgment is not an asset of the Trust and therefore, as Trustees, they do not have standing to sue to enforce the 1997 Judgment. That Shelly and Craig are the statutory heirs of their parents (Prob. Code, § 44), nominated coexecutors of their wills and the successor trustees of the Trust, does not entitle them to avoid probate of the Wills of the parents when required by provisions of the Probate Code, as in this case.
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) . . . [W]e determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law. [Citations omitted, fn. omitted.]" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334-335.)
"We are not bound by the trial court's stated reasons or rationales. [Citation omitted.] We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation omitted.] (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1039.) "In undertaking our independent review of the evidence submitted, we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.]" (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438; accord Cucuzza v. City of Santa Clara, supra, at p. 1039; Code Civ. Proc., § 437c, subd. (p)(2).)
In our independent analysis, `""[w]e liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.""' (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286.)" (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.)
And, we affirm the trial court on any correct legal basis, even one not reached by that court. `"The fact that the action of the court may have been based upon an erroneous theory of the case, or upon an improper or unsound course of reasoning, cannot determine the question of its propriety. No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.' (Davey v. Southern Pacific Co. (1897), 116 Cal. 325, 329.)" (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.)
As noted in a leading practice guide, Drafting California Revocable Trusts (Cont.Ed.Bar. 4th ed. 2017), when a revocable living trust is established, it is typically funded in part by an assignment of personal property. (Id. at § 21.15, p. 21-22-21-23.) To take into account the likely acquisition of property between the time of funding of the trust and death, a settlor
Effecting the transfer of property by a pour over clause in a will on the death of a decedent is not automatic, however. In order for property which is not an asset of the revocable living trust on the date of death of a settlor of a trust to become an asset of that trust requires probate of the will of the decedent, unless an exception applies. (Prob. Code, § 13501, subd. (b);
While there is no exception to the requirement to probate wills containing "pour over" clauses, there is an exception for estates the value of which does not exceed a specific threshold, $100,000, later increased to $150,000.
"Only a real party in interest has standing to prosecute an action, except as otherwise provided by statute. (Code Civ. Proc., § 367.) A party who is not the real party in interest lacks standing to sue. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.) `A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law.' (Killian v. Millard (1991) 228 Cal.App.3d 1601, 1605.)" (Redevelopment Agency of San Diego v. San Diego Gas & Elec. Co. (2003) 111 Cal.App.4th 912, 920-921.) Without standing, there is no actual or justiciable controversy, and courts will not entertain such cases. (3 Witkin, Cal. Procedure (3d ed. 1985) Actions, § 44, pp. 70-72; Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 751.)
An inquiry to determine standing is critical because a plaintiff who lacks standing cannot state a valid cause of action. A contention based on a plaintiff's lack of standing cannot be waived and may be raised at any time in the proceedings, including for the first time on appeal. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438-439 [standing issue involves "jurisdictional challenges" and may be raised for the first time on appeal; in that case, for the first time before the Supreme Court]; McKinny v. Board of Trustees (1982) 31 Cal.3d 79, 80-81; Horn v. County of Ventura (1979) 24 Cal.3d 605, 619; Parker v. Bowron (1953) 40 Cal.2d 344, 351; Drake v. Pinkham (2013) 217 Cal.App.4th 400, 407 [issue raised in respondent's brief on appeal].)
The parties do not dispute the facts relevant to determination of the issue of the Trustees' standing: The Trustees agree that the Wills of Seymour and Henrietta were not probated and Dubin does not contest the authenticity or terms of those Wills, of the Trust, of the 1990 Assignment, or that the 1997 Judgment was the result of an action maintained by Seymour and Henrietta as individuals and not as Trustees of the Trust. Nor is there any evidence of any assignment of personal property to the Trust executed after 1990 or of a specific assignment of the 1997 Judgment to the Trust. Instead, each of the Trustees executed a declaration dated in 2016 which they contend complies with Probate Code sections 13100 and 13101. We also assume for this analysis that the principal of the 1997 Judgment was the community property of Seymour and Henrietta, thus reducing the principal and interest due on the 1997 Judgment in each estate on the date of death by half.
In the trial court, it was Dubin's burden to establish, as a matter of law, that the Trustees lacked standing to bring the action. Relying on the essentially undisputed material facts, that the 1997 Judgment was obtained by Seymour and Henrietta as individuals, and that the present action was commenced by Shelly and Craig as Trustees on behalf of the Trust, Dubin argued below, and contends on appeal, that "it is undisputed that [Trustees] were not parties to the original action upon which [the 1997 Judgment] was obtained against Dubin. . . . As such [they] have no standing to prosecute this claim against Dubin."
The Trustees first argue that they may enforce the 1997 Judgment as trustees of the Trust on the authority of Code of Civil Procedure section 686.010 which provides: "After the death of the judgment creditor, the judgment may be enforced as provided in this title by the judgment creditor's executor or administrator or successor in interest." They advance this argument in reliance on the Law Revision Commission Comment to this statute, which merely rephrases the statute, and on Darter v. Magnussen (1959) 172 Cal.App.2d 714, from which they quote the following passage: `"". . . it is well settled that death of the plaintiff after judgment in his favor and while the judgment stands does not abate the action or affect the validity of the judgment. . . . Such a judgment becomes part of his estate and may be enforced by his representatives.""' (Id. at p. 719) The quoted language does not abrogate the requirement to probate a will when required by statute.
And, nothing in the cited statute, or in the Enforcement of Judgments Act (Code of Civ. Proc., §§ 680.010 et seq.), repeals or supersedes any provision of the Probate Code: it is that code (with exceptions not relevant here) which regulates the procedure by which "a judgment becomes part of [the decedent's] estate" after which it may be "enforced by [the] "representatives" of the decedent. (Ibid.)
Properly construed, the section upon which the Trustees rely means that a judgment does not expire on death and that it may be enforced by the appropriate representative. As we have noted, ante, determining who is the appropriate representative requires compliance with provisions of the Probate Code.
Nor does Darter v. Magnussen, supra, 172 Cal.App.2d 714, support the Trustees' claim that death brings about the automatic transfer of an asset, whether to the heirs under a will or to the trustees or beneficiaries of a revocable living trust. In that case, the executor of the estate of the deceased wife had substituted into a family law proceeding for the wife who had died after entry of an interlocutory decree of divorce for the purpose of collecting for her estate assets due to the deceased wife under that decree. There is nothing in that case to suggest that death automatically brings about a transfer of assets prior to probate when other statutes require compliance with the Probate Code.
It is a fundamental principle that statutes and codes are to be construed in harmony unless there is a specific reason not to do so. (See, fn. 19, ante.) The Trustees present no argument that that rule should not be applied here.
Second, appellants argue that they have standing because (a) each of the wills of Seymour and of Henrietta, of which they are co-executors, provides that all of the decedent's property is to be transferred to the Trust upon his and her deaths;
Appellants err in each claim. To the extent they rely on the pour over clause in each of the Wills of Seymour and Henrietta, and as we have discussed, ante, the presence of such a clause in a will is not an automatic exception to the requirement that each decedent's will, even one containing such a provision, must be probated unless an exception applies. There is no "automatic" exception to probate; probate is mandatory unless a specific statutory exception applies. (See California Decedent Estate Practice (Cont.Ed.Bar 2nd ed. 2017) § 3.11, p. 3-9.) The Trustees also err in their reliance upon Probate Code section 62, which contains only a definition of the term property.
Nor does the Trustees' reliance on Rappleyea, supra, support their argument. That case does not address any issue of relevance to the Trustees' claim that personal property is automatically transferred to a revocable living trust on the death of one of its settlors. Instead, the case concerns principles to be applied in ruling on a motion to set aside a default and default judgment, only incidentally referencing the circumstance that a judgment is a form of personal property.
Third, the Trustees argue that section 2.4 of the Trust "ensure[s] that the judgment is now part of the property owned by the Trust" because that section authorizes the Trustee to "accept additions to this trust from any source." Based on this provision, the Trustees argue that the Wills of Seymour and Henrietta automatically transferred all property to the Trust, including the 1997 Judgment. However, the third sentence of the same paragraph requires "That additional property shall become part of the trust estate on written acceptance of it by the trustee." There is no evidence that any such "written acceptance" of the 1997 Judgment was ever executed.
Further, the third sentence of the same paragraph states: "That additional property shall become part of the trust estate on written acceptance of it by the trustee." There is no evidence that any such "written acceptance" of the 1997 Judgment was ever executed.
Fourth, appellants argue, "[e]ven if Code of Civil Procedure section 686.010 and Section 2.4 of the Trust were not sufficient to, by themselves, vest ownership and the power to enforce the judgment in the Trust, the Trust still possesses standing" because a `"settlor can manifest his intent to create a trust."' In making this argument, the Trustees confuse the intent to create a trust with the intent to fund it with assets. Their claim must be that the settlors intended to place all of their personal property in the Trust (a) by use of the 1990 Assignment of Personal Property; (b) "in terms of their Wills," (suggesting that the pour over clauses in the Wills of Seymour and Henrietta were sufficient to make the transfer); and (c) "by numerous conversations with their children, who are now successor trustees. . . ."
We have addressed, ante, the error in the Trustees' arguments based on the 1990 Assignment. And we have pointed out that the Probate Code requirement to probate an estate over a certain amount is not obviated by the presence in a Will of a "pour-over" provision.
There also is no merit to the argument that the 1997 Judgment must be an asset of the Trust based on the "numerous conversations with their children." Such a claim cannot prevail over the Probate Code requirement that a person dying with more than $100,000 in assets must commence and complete the probate process to effect the transfer of those assets as designated in the will of a decedent. Indeed, it is by probate that these claimed numerous conversations with their parents stating the intentions of the parents are carried into effect. The Trustees' reliance on Kucker v. Kucker (2011) 192 Cal.App.4th 90 (Kucker) to support this argument is misplaced. There, when the settlor of that revocable living trust amended and restated her revocable living trust, she executed an assignment "transferring all of her shares of stock in 11 specified corporations and funds." She omitted one security from that list. (Id. at pp. 92, 94.) In reversing the probate court's ruling that the omitted security was not an asset of the trust, the court of appeal relied on the clearly expressed intent of the settlor to transfer all of her securities to the trust, ruling that the omission of a single security when all others were expressly stated as being transferred was clearly an inadvertent omission. (Id. at pp. 94-95.) The Kucker court continues by referencing a practice guide which suggests that settlors periodically execute a general assignment of all of their assets to their trusts so that later acquired items can be added to those trusts on petition to the probate court.
Fifth, the Trustees rely on the "Declaration pursuant to Probate Code section 13100" which they contend "automatically transfers the property owned by the decedents—the 1997 Judgment—to the Trust, pursuant to the terms of the Will."
In support of this claim, the Trustees rely on the declaration filed by each of the Trustees, dated February 24, 2016, stating,
This claimed fact is clearly false. First, the face of the 1997 Judgment indicates that the amount due to Seymour and Henrietta is $937,000 plus interest. And, within a few days of the date she signed her declaration purporting to rely on the exception to probate contained in Probate Code section 13100, Shelly signed a second declaration in which she references these section 13100 declarations, recites the principal balance of the 1997 Judgment as $937,000 and then sets out in detail the calculation of interest in the nine years since the date of the 1997 Judgment, concluding with the statement: "Added to the principal, the total amount to satisfy the judgment is therefore $2,741,430.70."
We take judicial notice that the amount of the 1997 Judgment—whether its original principal amount, or with the addition of over nine years of interest—is far greater than the maximum allowable to avoid probate under Probate Code section 13100.
We conclude that the 1997 Judgment has never been properly conveyed to the Trustees in their capacity as trustees of the Trust. The present action was necessarily premised upon the standing of the Trustees to sue in their capacities as trustees of the Trust to enforce the 1997 Judgment. However, because the 1997 Judgment is not an asset of the Trust, the Trustees lack standing to sue to collect on it.
The July 15, 2016 judgment is affirmed. The parties shall each bear their own costs on appeal pursuant to California Rules of Court, rule 8.278(a)(5).
CHAVEZ, Acting P.J. HOFFSTADT, J., concurs.
Code of Civil Procedure section 337.5 provides: [The period prescribed for commencement of an action other than for the recovery of real property is] "Within 10 years . . . [¶] (b) An action upon a judgment or decree of any court of the United States or of any state within the United States."
Unless it is renewed, Code of Civil Procedure, section 683.020 bars enforcement of a money judgment more than 10 years after the date of its entry.
If an estate qualifies to use this procedure, the successors must jointly execute the declaration or affidavit prescribed by section 13101.
Probate Code section 13100 was amended to increase the amount which may pass without probate to $150,000, effective January 1, 2012. (Prob. Code, § 13100, as amended by Stats. 2011, ch. 117, § 4) We need not address any argument that that increase is retroactive, as in this case, the amount of the 1997 Judgment exceeds each of these statutory thresholds.
We also reject the Trustees' argument that they may sue on the 1997 Judgment as "successor[s] in interest" within the meaning of Code of Civil Procedure section 337.30 because that statute does not supersede the requirement that they first comply with requirements for its transfer to them pursuant to the Probate Code.
Probate Code section 1000 makes clear that Code of Civil Procedure "rules of practice" apply only to the extent the Probate Code is silent as to a particular procedural rule. Rules of substance, such as those set out in the Probate Code regarding when a will must be probated, are given primacy.
