Opinion
A151716
11-21-2019
Estate of DAVID LEE KU, Deceased. JERRY H. KU, Petitioner and Appellant, v. ANNA KU WONG et al., Objectors and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. PES-14-298072)
This matter involves a property dispute among family members with respect to a San Francisco residence. Appellant Jerry H. Ku bought this property in 1949 with his two brothers, Frederick (deceased in 2004) and David (deceased in 2005), as a joint tenancy. On March 1, 2017, appellant, then 90 years old, filed a petition to confirm title in probate court in which he asserted the right to be declared the sole owner of the San Francisco residence (hereinafter, petition). Respondents Anna Ku Wong, Helen Lee, Rena Ku Chin, Beulah Ku, Ava Ku, Melinda Low, Harold Fong and Harry Fong are adverse claimants asserting ownership interests in this property through intestate succession as David's heirs. On May 2, 2017, the trial court summarily denied the petition without an evidentiary hearing in a brief three-sentence written order.
Only respondent Anna Ku Wong appeared in probate court to oppose the petition.
Appellant thereafter challenged the May 2, 2017 order in this court on several grounds, including that the trial court committed reversible error by refusing to grant him an evidentiary hearing to prove his case before denying the petition. In response, respondents argued, inter alia, that appellant was challenging a nonappealable order, that the trial court lacked jurisdiction to decide his petition in the first place, and that appellant had "unclean hands" with respect to the property. In his reply brief, appellant set forth several reasoned arguments as to why his appeal was taken from an appealable order and why the trial court had jurisdiction over this matter, among other things.
On January 8, 2019, respondents filed motions for judicial notice, to dismiss the appeal and for sanctions against appellant and his attorneys. Respondents argued that appellant was frivolously pursuing this appeal for an improper purpose (to burden and harass them) despite the facts that the lower court lacked jurisdiction over the matter, that he was pursuing the same claims in a separate civil lawsuit, and that the order at issue was not appealable. In their motion, respondents sought sanctions against appellant and his attorneys to cover their attorney fees, as well as certain other "damages." We deferred consideration of these matters to the decision of this appeal on its merits.
Subsequently, on September 13, 2019, appellant filed his own request for dismissal of this appeal. According to appellant, this appeal is now moot in light of the recent judgment against him in the civil action to quiet title that relates to the same San Francisco residence at issue in this proceeding. In his request, appellant asserts he "hereby waives his right to appeal the quiet-title-action judgment." Appellant also explains that the quiet title action gave him the evidentiary hearing he had been seeking by way of this appeal, and that he has "accept[ed] that adverse action and wants to move on from this family dispute." Lastly, appellant asserts: "Each side should bear its own costs."
Respondents, however, have objected to appellant's request for dismissal on the ground their motion for sanctions against him and his attorneys for filing a frivolous appeal remains to be decided. (See Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-480 [appellate court may decide an otherwise moot appeal when, inter alia, a material question remains for the court's determination].)
Having reviewed the parties' briefs and motions and the record on appeal, we grant both parties' respective requests for dismissal of this appeal and award costs on appeal to respondents as the prevailing party. (See Cal. Rules of Court, rule 8.278(a)(2) [respondent is entitled to costs on appeal as the prevailing party if the Court of Appeal affirms the judgment without modification or dismisses the appeal].)
In addition, we deny respondents' motion for sanctions, filed January 8, 2019, as they have not established on this record that appellant's appeal is wholly frivolous. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 ["an appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit"]; see also In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 518 ["sanctions should be 'used most sparingly to deter only the most egregious conduct' [citation], and that an appeal lacks merit does not, alone, establish it is frivolous"].) As the California Supreme Court has made clear, " 'the borderline between a frivolous appeal and one which simply has no merit is vague indeed . . . . The difficulty of drawing the line simply points up an essential corollary to the power to dismiss frivolous appeals: that in all but the clearest cases it should not be used.' " (In re Marriage of Flaherty, supra, at p. 650.) Setting aside respondents' contentions regarding appellant's alleged "unclean hands" with respect to the property and alleged purpose of harassing and burdening them "with vastly and needlessly increased [legal] expenses," on this record, we cannot conclude this appeal so clearly constitutes a frivolous appeal that sanctions against appellant and his attorneys are appropriate. Accordingly, we reject respondents' request.
We grant respondents' motion, also filed January 8, 2019, for judicial notice of certified copies of the following documents: (1) joint tenancy deed dated July 27, 1949; (2) quitclaim deed dated September 3, 1991; (3) executor's deed dated July 7, 2015; (4) affidavit-death of joint tenant signed by appellant and recorded September 11, 2014; and (5) verified complaint for quiet title and declaratory relief filed by appellant in the Superior Court of the City and County of San Francisco on October 19, 2017. (Evid. Code, §§ 452, subds. (c), (d), 459; see Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 418 [reviewing court may take judicial notice of court records outside the record on appeal if such records are "relevant to and helpful toward resolving the matters before this court"].)
DISPOSITION
The appeal is dismissed. Respondents are entitled to costs on appeal.
/s/_________
Goode, J. WE CONCUR: /s/_________
Fujisaki, Acting P. J. /s/_________
Petrou, J.
Retired Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.