Estate of Kempton ( 2023 )

Filed 5/5/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
Estate of KIMBERLY JEAN
KEMPTON,
Deceased.
PHILLIP CAMPBELL, A164148
Respondent, (Alameda County Super. Ct.
v. No. RP13686482)
CHARLES KINNEY,
Appellant.
I. INTRODUCTION
Charles Kinney, an adjudicated vexatious litigant and disbarred former
attorney, obtained leave from our Administrative Presiding Justice to pursue
an appeal from the final judgment in this probate proceeding. Leave was
granted not because Kinney made the necessary threshold showing of merit
and absence of intent to harass or delay under Code of Civil Procedure
section 391.7, but because the vexatious litigant statute has no application to
a party who files an appeal in a proceeding he did not initiate. (John v.
Superior Court (2016) 63 Cal.4th 91, 99.)
Kinney appeals the probate court’s “Order Settling First and Final
Account and Directing Final Distribution; [and] Allowing Statutory and
1
Extraordinary Fees[]” (the Final Distribution and Allowance of Fees Order).
Although Kinney’s arguments on appeal are difficult to distill in a coherent
way, he appears to claim, chiefly, that the probate court erred in approving
Special Administrator Phillip Campbell’s (1) decision not to pay him his
$1,000 statutory fee, (2) cancellation of an agreement with Judith K., a prior
administrator of the estate, to manage and perform various services relating
to a house in San Leandro owned by the estate, and (3) approval of a
distribution of $329,684.82 out of the sales proceeds of the San Leandro
house to satisfy indebtedness pursuant to certain judgment liens against that
property.
In support of this third claim of error, Kinney advances a hodgepodge of
arguments. He contends, among other things, that all of the judgment liens
recognized as valid by the Special Administrator were “void”; that Clark and
her attorneys presented these judgments to Judith K. for payment as
creditors’ claims against Kempton’s estate; that Judith K. found Clark’s
creditors’ claims to be untimely or otherwise defective; that Clark and her
attorneys failed to initiate timely litigation to challenge Judith K.’s refusal to
pay her creditors’ claims; and that, even if any of the underlying judgments
were not “void,” it was error to recognize any of them as valid debts of the
estate because they were not properly proved up.
We will affirm. On all but one of the issues Kinney presents, he either
has no standing to appeal or is barred under the doctrine of claim preclusion,
and on the one remaining claim of error, we conclude that the probate court
acted within its discretion.
2
II. BACKGROUND
A. The Probate Proceedings in This Case
Before being disbarred, Kinney served briefly as the attorney for
Judith K., who was appointed in 2013 to administer the will of her late
daughter, Kimberly Kempton. Judith K. and her husband Ron were the only
devisees under the will. Kempton, an attorney, had been an active
participant in the unethical conduct that led to Kinney’s disbarment, and was
herself facing recommended disbarment by State Bar disciplinary authorities
along with Kinney at the time she died. The disciplinary proceedings arose
out of a series of baseless lawsuits by Kinney and Kempton. Those lawsuits
eventually resulted in judgments against the two of them for hundreds of
thousands of dollars in attorney fees, costs, and sanctions.
This probate proceeding appears to have become an instrument for the
evasion of that judgment indebtedness. After more than five years of delay in
winding up the affairs of the Kempton estate, the probate court sua sponte
issued an order directing Judith K. to file an inventory and appraisal of the
estate’s assets (Prob. Code, § 9613, subd. (a)) and to show cause why she
should not be removed from office (Prob. Code, § 8500). Shortly thereafter,
the court removed her as administrator and appointed Phillip Campbell as
Special Administrator. To rectify the situation he found, the Special
Administrator performed a forensic examination of the accounts of the estate,
marshalled and secured its assets, and prepared an accounting of the estate’s
assets and debts.
In February 2021, the Special Administrator filed a final report and
petition for approval of his final accounting and proposed distribution of
assets pursuant to that accounting (the Final Report). The Final Report
showed that, while Judith K. was serving as Administrator, the estate had
3
paid Kinney $13,756.50 in legal fees as well as $6,970 under a November
2017 agreement calling upon him to perform certain property management
and other services in connection with a house in San Leandro. The San
Leandro house, one of two real estate properties owned by Kempton at her
death, was a principal asset of the estate. 1
The Special Administrator was “unable to find any services provided by
[Kinney] that benefitted the estate.” He affirmatively found that various
filings by C. Brent Patten, Kinney’s successor as counsel to Judith K., 2 “were
not a benefit to the estate, and in fact were a waste of the estate.” And he
further found that an accounting filed by Judith K. in response to an order to
show cause “did not balance, [was] incomplete, . . . and generally showed a
level of incompetence and disregard for the proper administration of the
1 The November 2017 agreement obligated Kinney to perform “services
to manage, repair and other matters” relating to the San Leandro house. The
house was used by Kempton’s estate as a rental property during Judith K.’s
tenure as administrator. The agreement entitled Kinney to 10 percent of the
rental income generated by the home.
2 Patten died in 2019. He was appointed counsel to Judith K. in 2013,
apparently on Kinney’s recommendation. In his responding brief, the Special
Administrator offers the opinion that Kinney ghostwrote pleadings Patten
filed in this probate proceeding. That allegation, if true, may amount to
practicing law without a license (Bus. & Prof. Code, § 6125), and for a
disbarred attorney would be a felony offense punishable by imprisonment
(id., § 6126, subd. (b)). While we need not decide whether the allegation is
true to resolve this appeal, we note that it is consistent with Kinney’s
demonstrated pattern of using third-party proxies for his campaign of
litigation abuse, which continued after his disbarment. (Kempton v. Clark
(Sept. 25, 2014, B248713) [nonpub. opn.] [2014 Cal.App.Unpub. LEXIS 6779
at pp. *13–*15].) On our own motion, we take judicial notice of this
unpublished opinion. (Evid. Code, § 452, subds. (a), (d); Cal. Rules of Court,
rule 8.1115(b)(1).)
4
estate.” According to the Special Administrator, Patten failed to assist
Judith K. in “properly complying” with the order to show cause.
Nonetheless, the Special Administrator recognized that Patten and
Kinney were entitled to share in certain statutory fees for their service as
counsel to Judith K. But his recommendations to the court kept those fees to
a minimum. He recommended payment of $1,500 to Patten’s estate, opining
“[i]t would not be appropriate to compensate Mr. Patten for services that fell
below the standard of care.” For Kinney he recommended even less—
$1,000—and decided to pay the fee to Michele Clark, a lienholder on one of
the many judgments that have been entered against Kinney, instead of to
Kinney himself.
The Special Administrator also made a request for approval of his own
compensation, much of which he billed at discounted rates. This payment
request included hours billed for extraordinary efforts made necessary by the
complexity of the engagement. “Had Kinney not been involved” with
Kempton’s estate after her death, the Special Administrator explained in his
Final Report, “I believe the probate estate could have been closed in 12–18
months. The majority of the issues that impacted [the] estate and the need
for extra-ordinary time in its administration are the result of decedent’s
partnership with . . . Kinney, a vexatious litigant.”
A brief perusal of the extensive record here shows why the Special
Administrator offered this justification for having to spend an extraordinary
number of hours on the case. After his withdrawal as counsel to Judith K.,
Kinney filed a request for special notice in the Kempton probate proceeding,
claiming to be an interested party. That gave him the right to participate in
the case as to all matters affecting his potential interest. According to the
Special Administrator, Kinney proceeded to “object[] to every filing prepared
5
by the Special Administrator,” which required a response “no matter how
frivolous or impertinent.”
B. History of Litigation Abuse by Kinney and Kempton
No doubt due to the scattershot presentation of issues by Kinney,
neither party gives us a cogent explanation of the wider context behind the
events immediately at issue here. That context is illuminating. Read
together with the record in this case, a sprawling campaign of litigation
abuse by Kinney and Kempton over the course of more than a decade has
been documented extensively in several published opinions. We refer here to
(1) two Court of Appeal opinions, In re Kinney (2011) 201 Cal.App.4th 951and Kinney v. Clark (2017) 12 Cal.App.5th 724; (2) the federal opinions in
Kinney v. Cooper (C.D.Cal., Apr. 13, 2016, No. CV 15-9022 PSG (JCx))
2016 U.S.Dist. LEXIS 203959, affd. (9th Cir. 2017) 708 Fed.Appx. 411; Estate
of Kempton v. Clark (In re Clark) (Bankr.9th Cir. Nov. 4, 2014), No. CC-14-
1134-DKiTa) 2014 Bankr. LEXIS 4633, affd. (9th Cir. 2016) 662 Fed.Appx.
544; and In re Kinney (9th Cir., Dec. 28, 2017, No. 17-80256)
2017 U.S.App. LEXIS 27040; and (4) the State Bar Disciplinary Court of
Review opinion in In the Matter of Kinney (Review Dept. 2014) 5 Cal. State
Bar Ct. Rptr. 360 [2014 Calif. Op. LEXIS 34].
1. The Ferndale Cases
Stated generally, the pertinent facts are as follows. Eighteen years
ago, Clark had the misfortune of selling a home to Kinney and Kempton in
the Silver Lake neighborhood of Los Angeles. (Kinney v. Clark, supra,
12 Cal.App.5th at p. 727.) What began as a dispute over a fence and some
purported easements led to multiple lawsuits in Los Angeles County Superior
Court by Kinney and Kempton against Clark, various Silver Lake neighbors,
6
and the City of Los Angeles (the Ferndale cases), and eventually to an
avalanche of related, follow-on litigation in federal court.
Some of the Ferndale cases were brought by Kinney, and some by both
Kinney and Kempton. (Kinney v. Clark, supra, 12 Cal.App.5th at pp. 727–
728.) All of the lawsuits were baseless. (In the Matter of Kinney, supra,
2014 Calif. Op. LEXIS 34 at pp. *15–*16.) In 2008, upon entry of judgment
in the first of the Ferndale cases, the Superior Court granted an award of
contractual attorney fees and costs to Clark in the amount of $9,349.33. That
was just the beginning. By 2020, judgments in favor of Clark for more than
five hundred thousand dollars in additional contractual attorney fees and
costs, as well as sanctions, had been entered against Kinney and Kempton (or
her estate) in state and federal court.
There is no question Kinney was the ringleader in all of this. A Second
District Court of Appeal panel observed in 2011 that “[w]ith Kinney at the
helm, Kempton has pursued six lawsuits in Los Angeles Superior Court over
the last five years. All of the lawsuits relate to real property owned by
Kinney and Kempton (the K’s), located on Fernwood Avenue in the Silver
Lake neighborhood of Los Angeles . . . . The K’s have continually—and
resoundingly—lost their cases in the trial courts. As one trial judge aptly
wrote in a statement of decision, Kinney is ‘a relentless bully’ who displays
‘terrifying arrogance’ by filing ‘baseless litigation against the City and its
citizens.’ ” (In re Kinney, supra, 201 Cal.App.4th at p. 953.)
2. The Federal Litigation and the Vexatious Litigant Orders
After suing unsuccessfully in state court, Kinney and Kempton filed a
series of equally unmeritorious actions in federal court attempting to
relitigate issues they previously lost in state court. As judgment after
judgment in these cases went against them, the federal litigation snowballed
7
into a series of actions against Clark’s attorneys 3 and various official actors
who were involved with the litigation and the subsequent disciplinary
proceedings, including the State Bar, 4 members of the Second District Court
of Appeal panels that rejected the appeals in the Ferndale cases, 5 a federal
district court judge, 6 and every member of the California Supreme Court who
voted on denials of review in those cases. 7
There were dozens of these satellite federal actions. (In re Kinney,
supra, 2017 U.S.App. LEXIS 27040 at p. *2.) The federal proceedings
included four unsuccessful petitions for certiorari to the United States
Supreme Court. Like the Ferndale cases and the appeals that arose out of
them, all of this collateral federal litigation was baseless. (Kinney v. Cooper,
supra, 708 Fed.Appx. at p. 412.) Ultimately, Kinney and Kempton were
declared vexatious litigants by the Los Angeles Superior Court, the Second
District Court of Appeal, the Central District of California, and the Ninth
Circuit Court of Appeals. Kinney and Kempton were jointly tried on
disciplinary charges before the same State Bar hearing officer, but Kempton
died in a motorcycle accident before the State Bar disciplinary proceedings
E.g., Kinney v. Chomsky (C.D.Cal. Oct. 9, 2014, No. 14-5895 PSG
3
(MRWx)) 2014 U.S.Dist. LEXIS 200207.
4E.g., Kinney v. State Bar of California (N.D.Cal., Aug. 29, 2016,
No. 16-cv-02277-MMC) 2016 U.S.Dist. LEXIS 115857.
5E.g., Kinney v. Lavin (N.D.Cal., Oct. 31, 2014, No. C-14-3817 MMC)
2014 U.S.Dist. LEXIS 154870; Kinney v. Cuéllar (N.D.Cal., June 1, 2018,
No. 18-cv-01041-EMC) 2018 U.S.Dist. LEXIS 92314.
E.g., Kinney v. Gutierrez (C.D.Cal., Oct. 4, 2016, No. CV 16-6168 PSG)
6
2016 U.S.Dist. LEXIS 194305.
E.g., Kinney v. Cantil-Sakauye (N.D.Cal., June 22, 2017, No. 17-cv-
7
01607-DMR) 2017 U.S.Dist. LEXIS 96857; Kinney v. Cuéllar, supra,
2018 U.S.Dist. LEXIS 92314.
8
against her could be completed. (In the Matter of Kinney, supra, 2014 Calif.
Op. LEXIS 34 at p. *3, fn. 2.) Kinney was disbarred. (Id. at pp. *22–*25.
3. Clark’s 2010 Bankruptcy, the Determination That Kinney Engaged
in a Pattern of Using Kempton as a “Strawman” To Evade Vexatious
Litigant Orders Against Him, the Conclusion of Clark’s Bankruptcy
Proceeding in 2014, and the Various Removal Proceedings
Clark declared bankruptcy in 2010, largely because of the expense of
defending litigation brought by Kinney and Kempton. (Kinney v. Clark,
supra, 12 Cal.App.5th at pp. 728–729.) According to her attorneys, she filed
for bankruptcy in an effort to use the automatic bankruptcy stay to shield
herself from further lawsuits by Kinney and Kempton. But Kinney and
Kempton had other ideas. They tried to turn her bankruptcy proceeding into
another arena for the pursuit of frivolous litigation.
Kempton filed an adversary proceeding in the bankruptcy court seeking
rescission of the contract under which attorney fees were awarded to Clark in
the Ferndale cases. (Estate of Kempton v. Clark (In re Clark), supra, 2014
Bankr. LEXIS 4633 at pp. *6–*7.) Kempton’s adversary proceeding was, in
effect, an attempt to establish retrospectively that Clark had no rights to
attorney fees recovery in the Ferndale cases because her petition for a
bankruptcy discharge supposedly cut off those rights. But that gambit failed
when the bankruptcy court held the adversary proceeding in abeyance until
state court proceedings in an offshoot of the Ferndale cases, a severed cross-
suit called Kempton v. Cooper, were completed. (Estate of Kempton v. Clark
(In re Clark), at p. *6.)
By motion, Clark asked the bankruptcy court to deem abandoned any
interest the bankruptcy trustee had in Clark’s right to recover fees arising
out of the Ferndale cases, and the motion was granted. (Kinney v. Clark,
supra, 12 Cal.App.5th at p. 729.) In granting the abandonment motion, the
9
bankruptcy court rejected an attempt by Kinney and Kempton to have that
court revisit the state law issue of whether Clark was entitled to contractual
attorney fees in the Ferndale cases. (Ibid.) It ruled that all issues concerning
recovery of attorney fees by Clark under the contract of sale with Kinney and
Kempton were to be determined by the Superior Court in Kempton v. Cooper.
(Ibid.)
Clark prevailed in Kempton v. Cooper and filed a motion for another
attorney fee award. Her motion was granted, and in 2013 a judgment was
entered awarding $167,678.50 in contractual fees and costs against Kempton
just before her death (the 2013 Kempton v. Cooper Judgment). The order
awarding this fee recovery answered the question the bankruptcy court
explicitly left for decision as a matter of state law: the Superior Court once
again confirmed—this time after Clark’s bankruptcy discharge—that Clark
was entitled to prevailing party attorney fees and costs against Kempton and
Kinney under the contract of sale at issue in the Ferndale cases.
For Clark, there remained one wrinkle to iron out at that point.
Because Kinney was not a party to Kempton v. Cooper, the Superior Court
allowed recovery of fees solely against Kempton. Clark appealed, and an
appellate panel held that, although Kinney was nominally a non-party to
Kempton v. Cooper, he was a de facto plaintiff and had utilized Kempton as a
“ ‘strawman.’ ” (Kempton v. Clark, supra, B248713 [2014 Cal.App.Unpub.
LEXIS 6779 at pp. *15–*17].) As a result, he was ordered to be added as a
codefendant judgment debtor jointly liable for the fee award against Kempton
(ibid.), which made both Kinney and Kempton liable on the 2013 Kempton v.
Cooper Judgment.
The bankruptcy court granted Clark a discharge of debts in 2012, but
two years later, in 2014, following the decision for Clark in Kempton v.
10
Cooper—which was still pending when the discharge order was entered—
reopened the bankruptcy proceedings for the sole purpose of dismissing the
adversary proceeding Kempton had initiated. (Estate of Kempton (In re
Clark), supra, 2014 Bankr. LEXIS 4633 at p. *13, affd. 662 Fed.Appx. 544.)
Although that brought Clark’s bankruptcy proceeding to conclusion, Kinney
still would not accept defeat. He filed baseless appeals in the Ninth Circuit
on multiple occasions, on multiple issues, and lost again—repeatedly. (In re
Kinney, supra, 2017 U.S.App. LEXIS 27040 at pp.*1–*2 [listing 21 appeals].) 8
Meanwhile, back in state court, before the 2013 Kempton v. Cooper
Judgment became final, Kinney and Judith K. on multiple occasions
attempted to remove the proceedings to the United States District Court for
the Central District of California, and each time the federal district court
remanded the proceeding back to Los Angeles County Superior Court. In two
of the three attempts at removal, the federal district court awarded attorney
fees as a sanction under title 28 United States Code section 1447(c) for the
filing of an objectively baseless removal petition. The federal district court’s
first award, set forth in a judgment against Kinney in amount of $10,050,
was entered June 10, 2016 (the 2016 Removal Sanctions Judgment). 9 The
second award, set forth in a judgment against Judith K. in the amount of
8 Judith K., in her capacity as administrator of the Kempton estate,
participated in some of this frivolous litigation activity. She attempted to join
in the pending state court appeal in Kempton v. Clark following Kempton’s
death, but was dismissed for lack of standing. (Kinney v. Clark, supra,
12 Cal.App.5th at p. 730.) She also filed her own unsuccessful Ninth Circuit
appeal of the bankruptcy court’s decision closing Clark’s bankruptcy. (Estate
of Kempton v. Clark (In re Clark), supra, 2014 Bankr. LEXIS 4633, affd.
(9th Cir. 2016) 662 Fed.Appx. 544.)
9 Kinney v. Cooper, supra, 2016 U.S.Dist. LEXIS 203959.
11
$83,885, was entered March 9, 2017 (the 2017 Removal Sanctions
Judgment). 10
C. Attempts by Clark and Her Attorneys To Collect Judgment
Indebtedness Directly from the Kempton Estate and Then
by Enforcement of Judgment Liens Against the San
Leandro House
Having outlined in broad strokes this astonishing history of litigation
abuse by Kinney and Kempton (we have summarized only some of it), we
turn our focus back to the probate proceeding before us. A series of fee
awards in Superior Court and in the Court of Appeal followed the 2008 fee
award in the first of the Ferndale cases, Kinney v. Clark, as Clark began to
take steps to collect. Kinney and Kempton resisted at every turn. Clark’s
collection efforts, described in detail in the Second District’s opinion in
Kinney v. Clark, supra, 12 Cal.App.5th at pp. 730–731, continued in this
proceeding.
Beginning in August 2013, Clark and her attorneys filed six creditors’
claims seeking payment from the Kempton estate on fee awards arising out of
the Ferndale cases. Judith K. did not act on these claims for two years, but
in 2015 Patten, acting on her behalf, filed objections to three of them and
outright rejections of three others. Rather than mount a challenge to
Patten’s refusal to recognize the validity of fee awards in the Ferndale cases
by suing the Kempton estate (thus opening up another arena for relitigation
of whether the underlying judgments were valid), Clark and her attorneys
took two alternate routes to collection.
First, they argued that some of the judgments in the ongoing litigation
campaign by Kinney and Judith K. after Kempton’s death—specifically, the
10 In re Kinney, supra, 2017 U.S.App. LEXIS 27040.
12
judgments arising out of federal litigation misconduct after Kempton died—
were not debts of Kempton at the time of her death, and instead were payable
as administrative claims against the estate. As such, they argued, these
claims were not subject to the timing requirements for creditors’ claims.
Judith K. disagreed, and was facing a motion to compel her to recognize the
federal judgments as valid debts of the estate when she was removed.
A second, alternate approach to collection ultimately proved to be more
successful. Clark and her attorneys recorded judgment liens against the San
Leandro house. Prior to Judith K.’s removal, there did not appear to be
enough equity in the San Leandro house to fund a payoff of much of the
judgment debt against Kempton, no matter how much of it was legitimately
considered a debt of the estate. As of 2018, Patten’s accounting statements
for the Kempton estate reported a value for the San Leandro house of
“around $500,000, with loans of about $435,000.” Clark and her attorneys
had recorded judgment liens showing standing judgment indebtedness of
$540,000, far more than could be paid out of the reported $65,000 of equity in
the house.
But it turned out that Patten had significantly undervalued the San
Leandro house as an asset of the estate. 11 The Special Administrator’s first
status report to the court following his appointment in January 2019
informed the court that the San Leandro house had “an approximate value of
$879,400 and a house note of $329,400,” and thus equity of $550,000. The
house was eventually sold by the Special Administrator in 2021 for $960,000.
11In its order suspending Judith K. as personal representative of the
Kempton estate, the probate court found that the values listed on an
inventory and appraisal of assets in the estate in response to its order to
show cause were “not reliable.”
13
And when the sale took place, payments of $329,684.82 went to Clark and
her attorneys out of escrow.
Still, however, the escrow payouts fell well short of the entire amount
of the judgment liens recorded against the San Leandro house, after other
debts of the estate were paid. As the Special Administrator points out in his
responding brief, “[t]his was a bankrupt estate” with debts and pending
judgment liens that “were greater than the market value of the estate’s
assets.” It is typical, of course, that in a negotiated workout of indebtedness
between an insolvent debtor and its creditors, only part of the total amount
owing will be paid, and some forms of debt may be prioritized over other
forms of debt. That appears to be what happened here.
The $329,684.82 in judgment lien payouts was an agreed upon amount
negotiated between the Special Administrator and Clark’s attorneys to cover
most but not all of the indebtedness on the two largest outstanding
judgments against the Kempton estate, the 2013 Kempton v. Cooper
Judgment and the 2017 Removal Sanctions Judgment. The Special
Administrator determined that six other creditors’ claims for judgment liens
totaling some $129,659 “were all timely rejected and as such are not
liabilities of the estate.” With accrued interest, the 2013 Kempton v. Cooper
Judgment was fully paid in the amount of $295,617.35. And the 2017
Removal Sanctions Judgment was partially paid in the amount of $34,067.47,
leaving $49,267.53 still outstanding, without accounting for accrued interest.
III. DISCUSSION
A. Issues Raised on Appeal and Parties’ Contentions
Kinney devotes much of his rambling 63 pages of briefing in this appeal
to attacking as “void” various judgments recognized by the Special
Administrator as valid debts of the Kempton estate.
14
Kinney argues it was error to allow any of the assets of the Kempton
estate to be paid to satisfy judgments awarding attorney fees and costs to
Clark or her attorneys. His primary theory (there are a number of variations
on it) is that as a result of Clark’s bankruptcy discharge, she had no
obligation to pay anything to attorneys for the time they spent attempting to
collect fee awards against Kempton, or him, or both of them, in the Ferndale
cases.
The thrust of Kinney’s “void” judgment arguments appears to be that
any contract Clark had with her attorneys prior to her 2010 Chapter 7
bankruptcy filing was not affirmed by the bankruptcy trustee and that any
claim to payment from her on such a contract was an undisclosed, pre-
petition debt. According to Kinney, it would violate federal bankruptcy law
and intrude on exclusive bankruptcy jurisdiction to recognize as valid any
judgments resting on such a claim.
Without detailing every one of the other issues Kinney raises, framed
in exactly the terms he argues (much of which is difficult to follow), he also
complains generally that, on Judith K.’s behalf, Patten rejected attempts by
Clark and her attorneys to present “void” judgments in the form of creditors’
claims payable directly by the Kempton estate, and that Clark and her
attorneys failed to initiate timely litigation against the estate to collect on the
judgments after Judith K. refused to recognize them as valid. 12
The opening brief summarizes the arguments advanced in support of
12
the appeal as follows: The Special Administrator “improperly (1) reduced
Kinney’s statutory attorney fee to $0; (2) rejected Kinney’s handyman claim
for amounts owed and cancelled his written contract with Judith [K.] as a
handyman for [Kempton’s] San Leandro property; (3) paid Clark and her
attorneys Marcus about $330,000 on rejected [and void] probate claims, [void]
liens, and/or [void] abstracts of judgment; (4) failed to get lien and other
15
B. Claims of Error Kinney Either Has No Standing To Raise
or Is Foreclosed from Raising
Arguments from Kinney and his proxies that the judgment
indebtedness against him and Kempton is “void” have been rejected by courts
on many previous occasions. (Kinney v. Clark, supra, 12 Cal.App.5th at
p. 735 [“We note Kinney repeatedly has argued in the bankruptcy court, the
federal district court, and the Ninth Circuit Court of Appeals without success
that all superior court orders awarding Clark attorney fees and costs issued
releases for payments of about $330,000 to Clark and her attorneys Marcus
at the 2020 close of escrow on [Kempton’s] San Leandro house; (5) received
[excessive]. . .compensation for extraordinary services (in addition to a
statutory fee) even though he failed to get independent opinion(s) from
expert(s) (e.g. the automatic stay and discharge injunction in Clark’s
bankruptcy; and charging liens); (6) caused waste, damage, and injury to
Estate property; (7) failed to protect Estate property; (8) colluded with Clark’s
attorneys Marcus (who never proved the validity of their 2007 hourly-fee
retainer with a charging lien in the state courts; and who were unsecured
creditors of Clark so pre- and post-petition debts owed to them by Clark
became discharged debts) as to which probate claims etc would be paid at the
2020 close of escrow on [Kempton’s] house; (9) ignored violations of state laws
(e.g. void charging lien in attorneys Marcus’ 2007 hourly-fee retainer; void
cost orders against non-party Kinney; no mutual reciprocity for attorneys fees
under 2005 purchase contract after discharge, so Clark couldn’t shift fees
onto Kinney or [Kempton]; and (10) ignored violations of bankruptcy law
(e.g. no ‘relief from stay’ order; both pre- and post-petition debts owed by
Clark were discharged on 8/13/12 because those debts were contemplated as
of 12/15/08 onward and based on 2 pre-petition contracts).” (Italics and
bolding deleted; grammatical and formatting errors in original.) There is a
discussion section in the opening brief, and a corresponding response in the
responding brief, for each of these ten arguments. At oral argument, Kinney
took the position that he does not seek to appeal issue number three on this
list—abandoning that issue in an apparent effort to make it look as if the
appeal is narrower that it is as briefed—but he did not disclaim any of the
other arguments on the list.
16
after Clark declared bankruptcy in July 2010 violate bankruptcy law and are
void”].)
While the limited interest Kinney has as a small administrative
creditor of the Kempton estate does require us to address the propriety of
paying his fee to someone else—an issue we address below—we need not
treat him as someone with a sufficient stake in the estate to warrant plenary
review of the Final Distribution and Allowance of Fees Order, which is what
the wide-ranging arguments he presents invite us to do. Because Kinney has
not been injured by the vast majority of decisions by the Special
Administrator that he now seeks to attack, he has no standing to appeal
anything other than the mode of payment of his statutory fee.
To resolve this appeal, we need not revisit Kinney’s various “void”
judgment arguments, address whether enforcement of judgment liens was a
proper mode of collecting judgment debt owed by Kempton or her estate, or
delve into whether the Special Administrator properly exercised his
discretion in evaluating which of the many liens pending against the San
Leandro house should be paid and in what order. What occurred with
judgments entered against Kempton alone or against both Kempton and
Kinney jointly—and specifically whether any of those judgments may be
considered valid debts of Kempton’s estate—is not relevant here. 13
This appeal gives new meaning to the old adage about making a
mountain out of a molehill. Kinney does not argue that his statutory fee
should have been higher than $1,000. Instead, he attempts to argue that the
13Equally immaterial are Kinney’s various contentions that the Special
Administrator charged excess fees, committed waste, failed to secure lien
releases on payments to discharge judgment debt, and paid attorney’s lien
claims that were never proved up.
17
Special Administrator “reduced” the fee to zero. To begin with, that is
factually incorrect. The Special Administrator allowed this statutory fee, but
paid it to Clark. Kinney’s statutory fee having been allowed and paid, he
cannot claim to have been adversely affected by the court’s confirmation of
actions of the Special Administrator (Prob. Code, § 1300, subd. (c)) that have
nothing to do with the payment of his fee to Clark.
The main problem for Kinney is one of standing. To establish standing
on appeal, Kinney must show that he is a “party aggrieved” by the probate
court’s rulings. (Code Civ. Proc., § 902; Estate of Armstrong (1966)
241 Cal.App.2d 1, 5–6.) An appellant is considered “aggrieved” whose rights
or interests are injuriously affected by the judgment under review. With
some rare exceptions (e.g., unconstitutional overbreadth, associational
standing), courts do not recognize third-party standing in appellate
procedure. Someone aggrieved by asserted error on one narrow, discrete
issue may not appeal on other issues that only affect the interests of a
nonappealing third party. (Bratcher v. Buckner (2001) 90 Cal.App.4th 1177,
1184.)
Perhaps Judith K. and her husband, as devisees under Kempton’s will,
might have had standing to appeal on some of the grounds Kinney attempts
to argue, but they declined to do so, which tends to suggest that, on this
record, no reasonable attorney would pursue any of the arguments Kinney
now makes. It appears to us that, after her removal, Judith K. wisely
decided to disassociate herself from Kinney’s continuing antics. Kinney
cannot now assume the role of appellant on her behalf. (Conservatorship of
Gregory D. (2013) 214 Cal.App.4th 62, 68 [“concerned mother” of conservatee
had no standing to appeal “on behalf of ” her conserved son, who was
represented by court-appointed counsel and “declined to appeal”.)
18
In an apparent effort to elevate his status as a creditor and thus his
stake in the estate, Kinney attempts to characterize his November 2017
agreement with Judith K. as a contract for “handyman” services to the estate,
and on that premise, he contends the contract was improperly cancelled. The
Special Administrator cancelled the November 2017 agreement with
Judith K. on the ground that Kinney was not properly licensed to perform
property management services, but Kinney now says he did not need a
license to perform “handyman” services.
Kinney does not tell us how much he claims to have been owed for his
“handyman” services or the extent of any harm he suffered due to the
cancellation, but that is neither here nor there because we see no merit in
this line of argument anyway. After the Special Administrator cancelled the
contract, Kinney filed a lawsuit challenging the cancellation, and under the
vexatious litigant statute was denied leave to pursue it. As a result, the case
was dismissed; this court affirmed the dismissal, and the judgment is now
final.
In this prior lawsuit, Kinney had an opportunity to characterize his
November 2017 agreement with Judith K. as a “handyman” contract and
challenge its cancellation on the ground he did not need a license to perform
maintenance and repair services; he was unable to demonstrate sufficient
merit in this or any other argument to warrant allowing the case to proceed.
Under the doctrine of claim preclusion, the now-final judgment in that case
bars him from relitigating issues pertaining to the cancelled contract in this
appeal. 14
At one point, Kinney goes so far as to argue that “[a]ll vexatious
14
litigant decisions against Kinney were based on non-judicial, ministerial, or
administrative acts (e.g., labeling him a vexatious litigant without supporting
19
C. Payment of Kinney’s Statutory Fee to a Third-Party
That leaves only the matter of Kinney’s $1,000 statutory fee for us to
address on the merits. We see no error on this issue. Allowance and
apportionment of “statutory fees . . . [is] within the discretion of the probate
court, whose determination will be upheld on appeal in the absence of
manifest abuse of discretion.” (Estate of Heller (1992) 7 Cal.App.4th 862,
864.) Similarly, reduction of statutory fees—including denial of fees if the
record warrants it—is within the court’s discretion. (Prob. Code, § 12205.)
There was no abuse of discretion here.
As explained in the Final Distribution and Allowance of Fees Order,
the probate court found that “Michele R. Clark has properly filed (August 22,
2019) and served the Special Administrator with an abstract of judgment in
the amount of $11,150.” The subject of that finding was the 2016 Removal
Sanctions Judgment. The record shows that the 2016 Removal Sanctions
Judgment was presented to the Special Administrator, and properly served,
which gave Kinney notice and an opportunity to challenge its validity. The
court concluded that “Charles Kinney, attorney for [Judith K.], is allowed the
statutory sum out of the estate as the statutory fee to which he is entitled”
and that the Special Administrator “shall pay $1,000 to Michele R. Clark
pursuant to the judgment lien she has filed against Mr. Kinney.”
facts) or on judicial decisions in which courts lacked all subject matter
jurisdiction (e.g., due to his status as a non-party; due to bankruptcy pre-
emption).” Kinney has already had a full opportunity to appeal the various
vexatious litigation orders issued against him. The judgments entered on
those orders long ago became final. His attempt to relitigate them en masse
in this appeal based on a variation of his “void” judgments argument (he tries
to cast these orders as “void vexatious litigant orders”) is not only barred by
the doctrine of claim preclusion, but is a particularly good illustration of the
baselessness of this appeal.
20
The 2016 Removal Sanctions Judgment was entered against Kinney
alone, and Clark has never taken the position it is a debt of the Kempton
estate. The amount of the 2016 Removal Sanctions Judgment was an award
for attorney fees incurred by Clark due to Kinney’s frivolous litigation
activity after her bankruptcy was over. Even if there was some plausibility
to any of the bankruptcy-related arguments Kinney now advances in an effort
to relitigate issues that have been resolved against him by many courts in the
past—we see not a glimmer of merit to any of those arguments—all of these
contentions are irrelevant to post-bankruptcy litigation misconduct by
Kinney, acting on his own after Kempton died.
In an order filed April 13, 2016, Judge Phillip Gutierrez explained the
procedural circumstances that led to entry of the 2016 Removal Sanctions
Judgment. According to Judge Gutierrez, “In November 2015, Kinney
removed both BC354136 and B265267 to this Court after [Clark and her
attorneys] filed motions in state court [in Kinney v. Cooper] for attorney’s fees
and dismissal, respectively. . . . The Court had an extensive history with
Kinney prior to these removals. Kinney attempted to remove a related case,
Kempton v. Clark, BC374938, on three separate occasions, only to be
remanded by the Court each time. . . . As part of the third remand, the Court
sanctioned Kinney, and later ordered him to pay Clark’s attorney’s fees
relating to the improper removal. . . . On August 11, 2015, the Ninth Circuit
affirmed the remand, sanctions, and attorney’s fee award. . . . [¶] On
February 4, 2016, the Court remanded both actions. . . . Additionally, the
Court exercised its discretion to allow [Clark and her attorneys] to file a
motion for attorney’s fees reasonably incurred from the improper removals.”
(Kinney v. Cooper, supra, 2016 U.S.Dist. LEXIS 203959 at p. *2.) A fee
21
motion was then filed and fees were granted against Kinney in the amount of
$11,050.
That fee order is incorporated in the 2016 Removal Sanctions
Judgment. While Kinney mounts a wide variety of arguments against
various other judgments, he says nothing specifically about the 2016 Removal
Sanctions Judgment, or at least nothing of any substance. He represents in
his brief that he was not served with an abstract of the judgment, but the
record shows otherwise. Uncontroverted record evidence supports the
probate court’s finding that Clark filed and then served Kinney with an
abstract of it. The proof of service shows that Kinney was on the service list.
Having been presented with an abstract of judgment showing judgment
indebtedness exceeding $1,000 owed by Kinney to Clark, and having been
given no legitimate reason to question the validity of that judgment—which
arose out of misconduct in federal court long after the Ferndale cases were
over and that therefore has nothing to do with Kinney’s various theories
about attorney fees incurred by Clark before her bankruptcy—the Special
Administrator was within his discretion to conclude that Kinney’s statutory
fee should be paid to Clark in partial satisfaction of his judgment debt to
her. 15 Since the probate court had discretion to deny payment of fees
outright, it also had discretion to approve payment of such fees to a third-
party who was legally entitled to the money in payment of debt owed by
Kinney on a judgment lien.
15To the extent Kinney’s generalized complaint about the Special
Administrator’s failure to secure lien releases specifically concerns the
payment of his statutory fee in partial discharge of his debt to Clark under
the 2016 Removal Sanctions Judgment, that issue has been forfeited.
Nowhere in the record do we see that Kinney asked the Special
Administrator to secure a release.
22
After payment of $329,684.82 in lien indebtedness out of the San
Leandro house sale proceeds, Clark was left with a considerable amount of
unsatisfied judgment debt, including debt owed to her by Kinney alone.
Under the circumstances, the Special Administrator appears to have
concluded that Clark was entitled to look to whatever other sources of
payment might be available to her, and Kinney’s statutory fee was one such
source of payment. Given the Special Administrator’s finding that he could
find no services rendered by Kinney that benefitted the estate, Kinney is
probably fortunate no one made a request that he be ordered to disgorge the
$20,726.50 in compensation paid to him during Judith K.’s tenure. Instead of
paying him more, the Special Administrator determined that Clark “may
pursue collection of [her] judgment against [his] earnings for personal
services” to the estate, and on that basis, paid Kinney’s statutory fee to her as
Kinney’s creditor.
We see no legal impediment to the probate court’s approval of this
third-party payment. What the court did was within the range of permissible
options available to it in dealing with the issue of Kinney’s statutory fee.
(See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957
[“there is no abuse of discretion requiring reversal if there exists a reasonable
or fairly debatable justification under the law for the trial court’s decision or,
alternatively stated, if that decision falls within the permissible range of
options set by the applicable legal criteria”].) Whether viewed in substance
and effect as a sua sponte order of assignment to a judgment creditor (Code
Civ. Proc. § 708.510) or a sua sponte wage garnishment order (Code Civ. Proc.
§ 706.021), we must presume the probate court had power to order payment
to Clark. (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 342–
23
343.) Any irregularity in the procedure it followed in making the order has
been waived.
D. Sanctions for Pursuit of Frivolous Appeal
Prior to oral argument in this case, on our own motion we issued an
order to show cause (OSC) why this court should not sanction Kinney for
filing and pursuing a frivolous appeal. (In re Marriage of Flaherty (1982)
31 Cal.3d 637, 645–654; Code Civ. Proc. § 907; Cal. Rules of Court, rule 8.276
(a)(1).) The OSC warned that sanctions may include not only an award of
attorney fees and costs to Campbell, but in addition an amount of sanctions
payable to the clerk of this court. (In re Marriage of Gong & Kwong (2008)
163 Cal.App.4th 510, 520). Kinney filed a written opposition to the OSC and
at oral argument reiterated some of the points made in his opposition.
“An appeal is considered objectively frivolous ‘ “ ‘when any reasonable
attorney would agree that the appeal is totally and completely without
merit.’ ” ’ [Citation.] We look to the merits of the appeal from a reasonable
person’s perspective. . . . An appeal may be objectively frivolous if there is
already a legal authority ‘addressing the precise issue. . .raised’ [citation], or
when appellant's arguments rest on negligible legal foundation [citation]. An
appeal is totally devoid of merit where there are ‘no unique issues, no facts
that are not amenable to easy analysis in terms of existing law, and no
reasoned argument by [appellant] for an extension of existing law.’ ” (Malek
Media Group, LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 834–835.)
This standard is met in this case. At oral argument, Kinney claimed he
does not, in fact, seek to appeal the Special Administrator’s approval of a
distribution of $329,684.82 out of the sales proceeds of the San Leandro
house to satisfy judgment indebtedness. That assertion is not only belied by
his opening brief (see ante, fn. 12), but constitutes a misrepresentation to the
24
court that compounds the sanctions problem he faces. Other than his
attempt to narrow the scope of his appeal on the fly at oral argument,
Kinney’s written and oral opposition to the OSC is nothing more than a
rehash of the arguments in his main briefs.
Now, to be sure, the issue of paying a third-party judgment lien holder
the statutory fee earned by counsel to a probate administrator is unusual and
has not been addressed by any published case. And if that issue were the
sole basis of the appeal, we may not have entertained a possible sanctions
order. Under settled law, however, “[s]anctions for an appeal which is
partially frivolous are appropriate if the frivolous claims are a significant and
material part of the appeal.” (Maple Properties v. Harris (1984)
158 Cal.App.3d 997, 1010, italics in original.) Here, nine out of the ten claims
of error presented in the opening brief are frivolous under the Flaherty
standard. By any measure, these claims comprise “a significant and material
part of the appeal.” (Ibid., italics omitted) Accordingly, we will order Kinney
to pay sanctions for the pursuit of this appeal. 16
16 We publish this opinion because we believe it is important “to
publicly illuminate a particularly egregious example of an abuse of the legal
system and to bring to the attention of other courts, who may find themselves
similarly burdened by litigation initiated by this same party.” (Kim v. Walker
(1989) 208 Cal.App.3d 375, 386, fn. 10.) Borrowing some apt language from
Kim, “our resolution of [this case] . . . appears to be only a small part of the
extensive litigation which [Kinney] has commenced” (ibid.) and seems
inclined to continue to pursue whenever the opportunity arises. The rarity of
the set of circumstances presented and the type of misconduct involved meet
the standards set forth in subdivisions (c)(2) [“Applies an existing rule of law
to a set of facts significantly different from those stated in published
opinions”] and (c)(6) [“Involves a legal issue of continuing public interest”] of
rule 8.1105 of the California Rules of Court.
25
IV. DISPOSITION
The Final Distribution and Allowance of Fees Order is affirmed. The
clerk of this court is ordered to forward a copy of this opinion to the State Bar
upon return of the remittitur (Bus. & Prof. Code, §§ 6086.7, subd. (a), 6068,
subd. (o)(3)) and in that referral to bring to the State Bar’s attention
footnote 2 of this opinion. The case is remanded to the probate court, where,
upon satisfactory proof from the Special Administrator of the amount of
reasonable attorney’s fees and costs incurred to respond to the frivolous
portions of the appeal, the court shall award sanctions against Kinney
payable to the Special Administrator. In addition, the sanctions order shall
include a sanctions amount of $5,000 payable to the Clerk of this court.
STREETER, J.
WE CONCUR:
BROWN, P. J.
GOLDMAN, J.
26
Trial Court: Superior Court of California, County of Alameda
Trial Judge: Hon. Sandra K. Bean
Counsel: Charles Kinney, in pro. per., for Appellant.
Phillip Campbell, in pro. per., for Respondent.
Campbell v. Kinney – A164148