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Estate of Drummond3/21/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
After settling their will contest with their stepmother and receiving a partial distribution of the estate's assets, the decedent's adult children, objectors and appellants George R. Drummond, Rebecca Drummond, and Jesse Marion (Children), objected to the administrator's second accounting and petition for distribution. Their objections related to the estate's payment of attorneys' fees to their former attorney, Michael Desmarais, and estate taxes. Richard Lambie, the administrator of the estate, and Desmarais moved for summary judgment on the second accounting. The trial court granted the motions on the ground that Children had failed to file separate statements in opposition to the motions and entered judgment on the second accounting and petition for distribution.
On appeal, Children contend that the motions for summary judgment were procedurally defective because they were not properly served and were filed prematurely, before the 60-day period mandated by Code of Civil Procedure section 437c, subdivision (a). Children also assert that the court erred in granting the motions for summary judgment because the moving parties did not meet their initial burdens of proof on the motions, that the court should have considered all of the papers on file and should not have granted the motion based on Children's failure to file a separate statement, and that their evidence created triable issues of material fact.
We hold that the motions were properly served and that they were not filed prematurely. We conclude, however, that summary judgment should not have been granted since the moving parties did not meet their initial burdens of persuasion on the summary judgment motions. We hold also that the court erred in granting Desmarais's motion for summary judgment because he did not have standing to bring the motion since he was not a party to the action. We will therefore reverse the judgment.
Facts and Procedural History
George Marion Drummond died on August 28, 1998. He left an estate valued in excess of $7.5 million. Seven weeks before his death, Drummond married Ok Yon Choe (hereafter "Mrs. Drummond" or "the widow").
Shortly before his death, Drummond prepared a will, which left the entire estate to Mrs. Drummond. In October 1998, Mrs. Drummond petitioned the court to probate the will. Letters of special administration were issued to respondent Richard Lambie on October 14, 1998. Children filed a will contest, challenging the will on the grounds that although it was notarized, it was not properly witnessed. Children asserted that under the laws of intestate succession they were entitled to two-thirds of the estate and Mrs. Drummond was entitled to one-third of the estate.
Initial Meeting Between Children and Their Attorneys; Attorney Fee Agreements
Children initially sought legal counsel from attorney James Rodriguez. Due to the complexity of the case and the potential for litigation, Rodriguez referred Children to Desmarais. George and Jesse met with Rodriguez and Desmarais on October 9, 1998, to discuss Children's representation. George's and the attorneys' accounts of what was discussed that day regarding attorneys' fees differ.
According to George, Desmarais suggested handling the matter on a contingency fee basis. Children initially refused and offered to
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