Estate of Day

Filed 7/14/06 Estate of Day CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

James Conway appeals from an order of the probate court denying his motion to set aside a judgment for final distribution of the estate of Raymond Earl Day (the Estate). Conway contends reversal is required because the judgment was procured by extrinsic fraud. We disagree and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The history of the underlying dispute and related appellate challenges is somewhat convoluted. The instant appeal is the latest attempt by Conway to vindicate his rights with respect to a real property transaction.[1] In May 2000, Conway filed a civil action against Raymond Earl Day (Raymond), decedent herein, California Trust Deeds, Inc. (CTD), and others, alleging, among other things, fraud and breach of contract in connection with Conway's purchase of certain real property from Raymond in 1993. In August 2002, Conway appealed from the judgment of dismissal with prejudice entered in favor of CTD, after the trial court sustained CTD's demurrer to the third amended complaint without leave to amend.

While the initial appeal was pending, Raymond died intestate on December 17, 2002. On December 30, 2002, David A. Day (David) filed a notice of petition to administer the estate under the Independent Administration of Estates Act (IAEA). The notice was mailed to Conway on December 30, 2002. Conway then filed a notice of proposed action objecting to the unsupervised authority of David. Based on this notice, the probate court set aside the â€