LISSOY v. LEACH
Filed 5/10/06
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| Estate of ROBERTA W. MYERS, Deceased. | |
| ALBERT O. LISSOY, Petitioner and Appellant, v. JOE H. LEACH, Objector and Respondent. | G035355 (Super. Ct. No. A197027 ) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Marjorie Laird Carter, Judge. Reversed and remanded.
James D. White; Donna Bader, for Petitioner and Appellant.
Stephen M. Magro for Objector and Respondent.
Albert O. Lissoy, a creditor of the estate of Roberta Myers, deceased, appeals from a summary judgment disposing of his petition for an order pursuant to Probate Code section 850[1]. Lissoy's petition sought to recover profits from the sale of real property for the benefit of the estate's creditors, based upon a claim the property had previously been fraudulently conveyed by Myers. The probate court determined Lissoy's petition failed as a matter of law because: He lacked standing to pursue an order under section 850; he failed to exhaust his right to require the executrix of the estate to pursue the claim under section 9653; and his claim was barred by the applicable statutes of limitations. We disagree with each of these conclusions, and therefore must reverse.
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As this case was decided on summary judgment, and our review is de novo, we will recite the evidence in the light most favorable to Lissoy. (Schooler v. State of California (2000) 85 Cal.App.4th 1004, 1008-1009.)
Most of the facts are undisputed. Lissoy is a creditor of the estate of Roberta Myers, deceased. The estate is insolvent. Lissoy's claim against the estate was approved in the amount of $275,000, but has been satisfied only to the extent of $125,000. Myers' debt to Lissoy stems from a business transaction in which Myers and her daughter, Diana Sheppard, had purchased a bar and restaurant business from Lissoy. When the venture proved unsuccessful, Myers and Sheppard defaulted.
Lissoy subsequently filed a lawsuit, seeking money damages from both Myers and Sheppard. Both of them later declared bankruptcy, and Lissoy's lawsuit was stayed. Meanwhile, respondent Joe Leach became romantically involved with Sheppard in 1994, and they began living together in 1996.
Myers was denied a discharge of the Lissoy debt in her bankruptcy proceeding. Shortly after that order was affirmed on appeal, in October of 1997, she sold her residence, located on Wellington Avenue in Santa Ana, to Leach. However, Myers continued to reside in the home, and there is evidence she (1) reimbursed Leach for his down payment; and (2) continued to pay the mortgage and all expenses associated with the Wellington residence. In May of 1998, Myers executed a holographic will, in which she directed that â€
