Filed 12/5/22 Patton v. Walter CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

JACK T. PATTON,

 Plaintiff, Cross-Appellant 

and Respondent.

v.

SALLY PATTON WALTER, et 

al.,

 Defendants, CrossRespondents and Appellants,

2d Civil No. B293694

(Super. Ct. No. 56-2007-

00288787-PR-PW-VTA)

(Ventura County)

Sally Patton Walter, individually and as trustee of 

the Patton Family Trust dated February 7, 2002, and Jodi Patton 

Ream appeal from orders of the probate court overruling their 

objections to their brother Jack Patton’s Supplement to 

Complaint for Imposition of Constructive Trust and Petition to 

Determine Entitlement to Share of Trust Assets and referring 
2

the matter to a referee.1 Jack Patton cross-appeals, contending 

the probate court should have entered an order distributing 

certain assets to him, without reference to a referee. We conclude 

the probate court erred. Jack’s Supplement to Complaint for 

Imposition of Constructive Trust and related petitions are based 

on the same cause of action he alleged in a prior civil action, In re 

Lowell T. Patton Trust, Ventura Sup. Ct. No. 56-2007-00288787. 

The final judgment in that action precludes litigation of the 

claims alleged here. Accordingly, we reverse the probate court’s 

order of September 20, 2018 appointing a referee, and its order of 

October 10, 2018 rejecting appellants’ objections to respondent’s 

petitions. Our resolution of the appeal renders Jack’s crossappeal moot.

Facts and Procedural History

In 2002, Lowell T. Patton and his wife, Mary Lou 

Patton, signed pour-over wills and established the Patton Family 

Trust. The Patton Family Trust was revocable during the joint 

lifetimes of the settlors, Lowell and Mary Lou. On the death of 

the first settlor, it divided into three trusts: a Survivor’s Trust 

(A), a Decedent’s Trust (B) and a Qualified Terminable Interest 

Trust or Marital Trust (C). Trusts B and C became irrevocable on 

the death of the first settlor and provided for a life estate to the 

surviving settlor. After the survivor passed away, the remainder 

would be divided equally between their three children, appellants 

Sally Patton Walter and Jodi Patton Ream, and respondent Jack 

T. Patton. 

Lowell and Mary Lou also established three 

charitable remainder unitrusts (CRUTs). These irrevocable 

1Like the trial court and the parties, we use the first names 

of the parties for clarity, intending no disrespect.
3

trusts pay income to the Pattons’ three children for a defined 

period of time and then distribute the remainder to designated 

charities. The Pattons owned a minor league baseball team. To 

fund the CRUTs, they incorporated the team and transferred the 

shares of stock into each CRUT. 

Mary Lou died in April 2002. By the summer of 

2003, Lowell was dissatisfied with the 2002 estate plan. Among 

other things, he came to believe that the lawyers and estate

planner who designed it had used the CRUTs to sell the baseball 

team without his consent. Sally and Jodi agreed with their 

father. Jack, who worked as the team’s general manager, 

supported the sale and worked with the lawyers to close the 

transaction. After the sale closed, in November 2004, Jack’s 

CRUT received 60% of the proceeds. The CRUTs established for 

Sally and Jodi each received 20%. 

In October 2003, Lowell granted his power of 

attorney to Sally. With respect to his employee retirement and 

other benefits, the power of attorney states: “The agent is 

authorized to establish one or more [IRAs] and employee benefits 

plans . . . on my behalf, to contribute to any IRA or plan held in 

my name, to roll over or direct transfers of plan benefits into 

other retirement plans or IRA accounts . . . , to manage the 

account, to withdraw from any account without limitation, to 

select or change payment options and to apply for and make any 

elections under any IRA or employee benefit plan in which I am a 

participant . . . , to take possession of all such benefits, and to 

distribute such benefits to or for my benefit. The agent shall 

have the power to designate and change beneficiaries who are 

either my spouse or my descendants or their spouses, except the 
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agent may not designate himself or herself without a showing 

that such designation is my intention.” 

In February 2005, Lowell revoked the Survivor’s 

Trust (A) of the 2002 Patton Family Trust and created the Lowell 

T. Patton Trust (the 2005 Trust). He also executed a new pourover will, naming the 2005 Trust as his sole beneficiary. Sally is 

the trustee of the 2005 Trust. She and Jodi are its sole 

beneficiaries; Jack is excluded. About eight months later, in 

October 2005, Lowell signed a Designation of Beneficiary naming 

the 2005 Trust as the beneficiary of his IRAs and of the Lowell T. 

Patton Profit Sharing Plan. Sally also signed the document as 

his power of attorney. 

Lowell filed lawsuits against the charitable 

beneficiaries of the CRUTs. He also sued the lawyers and the 

estate planner, alleging causes of action for breach of fiduciary 

duty, professional negligence, fraud on various theories and elder 

financial abuse. After Lowell’s death, Sally amended the 

complaint to name Jack as a defendant, on the theory that he 

aided and abetted the wrongdoing of the other defendants. The 

claims against most of the charities were settled. We have 

recently resolved the remaining claims in a related appeal, 

Walter, et al. v. Estate Strategies, Inc., et al., No. B280172. 

Lowell died in April 2007. Sally presented his 2005 

will for probate. Jack filed petitions to contest the 2005 will and 

trust, and for an accounting, all on the theories that, in 2005, 

Lowell lacked capacity to change his 2002 will and trust and that 

the changes were the result of undue influence by Sally and Jodi. 

Jack also filed a complaint for imposition of a 

constructive trust in which he alleged that he and his sisters 

were named as beneficiaries of Lowell’s profit sharing plan and 
5

IRAs in a 1999 Designation of Beneficiaries. Jack further alleged 

that the October 2005 Designation of Beneficiary was void 

because Lowell was not competent when he signed it and Sally’s 

power of attorney did not include the authority to change the 

beneficiaries of the Retirement Assets. In his prayer for relief, 

Jack requested, “That the court determine that the [2005 

Designation of Beneficiary] is not a valid or enforceable Revised 

Beneficiary Designation, and that assets of the decedent shall 

pass by prior [1999 Designation of Beneficiaries] executed by 

decedent at a time when he was fully competent and not subject 

to undue influence.” 

Jack’s trust and will contests and his complaint 

relating to the Retirement Assets were consolidated. After a 34-

day non-jury trial, the trial court issued a statement of decision 

which became its “final decision and judgment.” The trial court 

found that Lowell’s revocation of his 2002 Survivor’s Trust (A), 

execution of the 2005 will and establishment of the 2005 Trust

were not the product of undue influence and that these 

documents reflected Lowell’s “own free will and intent.” Lowell 

intended to exclude Jack as a beneficiary of the 2005 Trust and 

had personal reasons for doing so, including Jack’s participation 

in the sale of the baseball team. The 2005 will and trust are 

“fully valid and enforceable.” 

The trial court further found that the October 5, 2005 

Designation of Beneficiary was not valid or enforceable because

Lowell lacked capacity when he signed it. Sally’s power of 

attorney did not authorize her to designate the 2005 Trust as the 

beneficiary of the Retirement Assets. As a result, the 2005 

Designation of Beneficiary did not “achieve a valid testamentary 

transfer.” 
6

Although the trial court found the 2005 Designation 

of Beneficiary invalid, it did not impose a constructive trust on 

the Retirement Assets because it found Jack “proved no 

entitlement to such . . . relief.” It noted that, “Counsel advised 

the trial court that they will ask the Probate Court to determine 

what IRAs and retirement plans are encompassed by the 10/5/05 

Designation of Beneficiary; to ascertain the effect of the same 

assets being covered by other testamentary instruments; and to 

judge whether or not the retirement monies pass into the 2/17/05 

Lowell T. Patton Trust through Lowell’s 2/21/05 pour-over will.” 

The trial court did not, however, issue a declaratory judgment

that Jack is entitled to any portion of the Retirement Assets nor 

did the judgment expressly reserve that issue for consideration 

by the probate court or remand the matter to the probate court 

for that purpose. 

The trial court later clarified, in response to 

objections by Sally and Jodi, that it, “makes no finding with 

respect for the need for Sally Patton Walter, as the POA-holder, 

to use a beneficiary designation to effectuate a transfer of 

Lowell’s ‘IRA and employee benefits’ assets to the 2/17/05 Lowell 

T. Patton Trust. The trial court’s ruling is limited to the issue 

presented to it, which was whether the 10/5/05 beneficiary 

designation validly effectuated that transfer.” The trial court 

“affirm[ed] its Statement of Decision as its final decision and 

judgment in these consolidated cases.” Jack filed a Notice of 

Entry of Judgment on July 10, 2013. Neither party appealed.

More than two years after the entry of this judgment, 

Jack filed in the probate court a “Supplement to Complaint for 

Imposition of Constructive Trust [Civil Code § 2224]; Petition for 

Delivery of Property Pursuant to Probate Code § 850(a)(2)(C).”
7

The pleading sought an order that he is a beneficiary of the 

Retirement Assets, an accounting, and distribution to him of his 

share of the Retirement Assets. Appellants answered the 

Supplement to Complaint after being ordered by the probate 

court to do so. Their answer admits that all three Patton siblings 

were named as contingent beneficiaries of a profit sharing plan 

and trust established by Lowell Patton. 

Sally filed a declaration in which she stated that she 

used her power of attorney to terminate Lowell’s profit sharing 

plan (one of the Retirement Assets) in October 2005. Funds from 

that plan were deposited into accounts for Lowell’s benefit, 

including an IRA and an annuity fund. Sally stated that she was 

“unaware of any account maintained for the benefit of my father 

that included Jack Patton as a direct or contingent beneficiary.” 

After reviewing the parties’ briefs, the probate court 

overruled appellants’ objections based on res judicata, collateral 

estoppel, laches and the statute of limitations. It reasoned that 

the trial judge in the civil action “denied the remedy of 

constructive trust to Jack Patton, but referred the determination 

of the entitlement to retirement funds back to the Probate Court 

for determination. The decision denying the remedy of 

constructive trust was not res judicata of the issue of entitlement 

to retirement funds. The court did grant the remedy of 

invalidation of the [2005] designation.” 

It found Jack’s claims were not barred by collateral 

estoppel because “there was no finding against Jack Patton on 

the merits of his claims. His claimed remedy was denied on 

procedural grounds, but a remedy is not a cause of action, it is a 

remedy.” The probate court concluded Jack’s claim was not 

barred by a statute of limitations because he filed his Supplement 
8

to Complaint within two years of learning appellants continued 

to deny his right to a share of the Retirement Assets and because 

the “existence of the litigation since 2008 has tolled any other 

statutes of limitations.” The probate court referred all remaining 

issues to a referee for resolution. 

Contentions

Sally, Jodi and the Patton Family Trust contend the 

probate court erred as a matter of law because the final judgment 

in the prior action precludes continued litigation on matters that 

were decided or could have been decided in that judgment. Jack 

contends his claim to a share of the Retirement Assets is still 

alive because the prior judgment recognizes that he is a 

beneficiary of the Retirement Assets even if he is not entitled to 

the imposition of a constructive trust on those assets. 

Standard of Review

The probate court concluded that Jack’s Supplement 

to Complaint and related petitions are not barred by the 

doctrines of res judicata and collateral estoppel, by any statute of 

limitations or by the doctrine of laches. We review these 

conclusions de novo. (Aryeh v. Canon Business Solutions, Inc.

(2013) 55 Cal.4th 1185, 1191; Ghirardo v. Antonioli (1994) 8 

Cal.4th 791, 799; Smith v. ExxonMobil Oil Corp. (2007) 153 

Cal.App.4th 1407, 1414-1415.)

Discussion

In his Complaint for Imposition of Constructive Trust

in the prior action, Jack alleged that he was originally an 

alternate beneficiary of the Retirement Assets and that the 2005 

Designation of Beneficiary was signed by Lowell when he lacked 

testamentary capacity and under the undue influence of Sally 

and Jodi. He asked the trial court to “determine that the [2005 
9

Designation of Beneficiary] is not a valid or enforceable 

[designation], and that the assets of the decedent shall pass by 

prior Original Beneficiary Designation . . . .” The judgment in the 

prior action found that Sally and Jodi did not exercise undue 

influence over Lowell, but that the 2005 Designation of 

Beneficiaries was invalid because Lowell lacked testamentary 

capacity when he signed it and Sally’s power of attorney did not 

authorize her to name the 2005 Trust, rather than individuals, as 

beneficiary of the Retirement Assets. The trial court found Jack 

had not proven he was entitled to the imposition of a constructive 

trust. It made no finding on the question whether he is entitled 

to a share of the Retirement Assets, nor did it expressly reserve 

that question for determination by the probate court. 

Jack’s “Supplement to Complaint,” filed in the 

probate court, alleged Sally and Jodi had taken the position that 

the Retirement Assets “pass under the will” of their father, 

denying Jack had any interest in those assets. He asked the 

probate court, “For an order that he is a beneficiary under the 

retirement plans,” “for an accounting of the . . . plan benefits” and 

for “distribution to [Jack] of his share of said plan assets.” 

The doctrine of res judicata, or claim preclusion, 

“precludes the relitigation of a cause of action that previously was 

adjudicated in another proceeding between the same parties or 

parties in privity with them.” (Federation of Hillside & Canyon 

Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202.) 

Res judicata applies if: (1) the decision in the prior proceeding is 

final and on the merits; (2) the present proceeding is on the same 

cause of action as the prior proceeding; and (3) the party against 

whom the doctrine is asserted was a party or in privity with a 

party to the prior proceeding. (Boeken v. Philip Morris USA, Inc.
10

(2010) 48 Cal.4th 788, 797 (Boeken).) Where these criteria are 

met, res judicata bars the litigation not only of issues that were 

actually decided in the prior action, but also issues that could 

have been decided in that action. (Federation of Hillside & 

Canyon Assns., supra, at p. 1202; see also Ideal Hardware & 

Supply Co. v. Department of Employment (1952) 114 Cal.App.2d 

443, 447 [prior judgment is a bar to subsequent action on the 

same cause of action and “all matters that were litigated or that 

could have been litigated”].) The doctrine applies in probate 

matters as it does in civil actions. (Estate of Dito (2011) 198 

Cal.App.4th 791, 801-802.)

California defines a cause of action by applying the 

“‘primary rights’” theory, “under which the invasion of one 

primary right gives rise to a single cause of action.” (Slater v. 

Blackwood (1975) 15 Cal.3d 791, 795.) The primary right “‘is 

simply the plaintiff’s right to be free from the particular injury 

suffered. . . .’” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 

888, 896, quoting Crowley v. Katleman (1994) 8 Cal.4th 666, 681-

682.) Under the primary right theory, “‘[a] cause of action . . . 

arises out of an antecedent primary right and corresponding duty 

and the delict or breach of such primary right and duty by the 

person on whom the duty rests. “Of these elements, the primary 

right and duty and the delict or wrong combined constitute the 

cause of action in the legal sense of the term. . . .”’” (Boeken, 

supra, 48 Cal.4th at pp. 797-798, quoting McKee v. Dodd (1908) 

152 Cal.637, 641.)

Here, the primary right asserted by Jack in the prior

action is the right to a share of the Retirement Assets as a 

beneficiary of Lowell’s IRAs and profit sharing plans. The 

corresponding duty is Sally’s duty as Lowell’s trustee, executor 
11

and agent under the power of attorney to distribute the 

Retirement Assets according to Lowell’s instructions. The alleged 

breach of duty is Sally’s refusal to distribute Jack’s share of the 

Retirement Assets to him. Jack alleges the same primary right, 

duty and breach in the Supplement to Complaint. We conclude 

the Supplement to Complaint alleges the same cause of action as 

the prior Complaint for Imposition of Constructive Trust. 

Jack contends his Supplement to Complaint is not 

barred by res judicata because, although the prior judgment 

denied him the remedy of a constructive trust, it also established

that he is a beneficiary of the Retirement Assets. In his view, the 

prior judgment found that a wrong had been committed – the 

attempted change in beneficiaries – and left the remedy for that 

wrong to be decided by the probate court. But the prior judgment

did not include those findings. The judgment does not state that 

Jack is a beneficiary of the Retirement Assets or that a prior 

designation of beneficiaries governs distribution of those assets. 

Nor did the judgment remand, transfer or otherwise 

“carve out” the issue of Jack’s available remedies for adjudication 

by the probate court. (See, e.g., Northrop Corp. v. Chaparral 

Energy (1985) 168 Cal.App.3d 725, 730; 7 Witkin, Cal. Procedure

(6th ed. 2021), Judgment, § 411, p. 931.) The statement of 

decision notes, “Counsel advised the trial court that they will ask 

the Probate Court to determine what IRAs and retirement plans 

are encompassed by the 10/5/05 Designation of Beneficiary; to 

ascertain the effect of the same assets being covered by other 

testamentary instruments; and to judge whether or not the 

retirement monies pass into the 2/17/05 Lowell T. Patton Trust 

through Lowell’s 2/21/05 pour-over will.” No reference to this 

advice was included in the minute order enumerating the trial 
12

court’s findings after trial, the “conclusions” section of its 

statement of decision, the June 28, 2013 order overruling 

appellants’ objections to the statement of decision, or the Notice 

of Entry of Judgment. We conclude the prior judgment did not 

refer any issues to the probate court for resolution.

Jack’s status as a beneficiary and his entitlement to a 

share of the Retirement Assets were not outside the scope of the 

issues presented to the trial court in the prior action. His 

complaint asked the court to determine “that assets of the 

decedent shall pass by” the 1999 Designation of Beneficiaries. 

When that determination was not made, Jack could have objected 

to the statement of decision or appealed. He did not and the 

judgment became final. The judgment now precludes continued 

litigation over issues that were actually decided or could have 

been decided in the prior judgment. (Tensor Group v. City of 

Glendale (1993) 14 Cal.App.4th 154, 160 [prior judgment 

conclusive on any matter “‘within the scope of the action, related 

to the subject matter and relevant to the issues, so that it could

have been raised . . .’”].)

Jack contends the prior judgment was not a final 

judgment on the merits of his cause of action but was, instead, 

only a determination that he was not entitled to a specific 

remedy. He relies on the general rule that, “If the plaintiff, with 

a good cause of action, seeks a remedy to which he or she is not 

entitled . . . judgment may be rendered against the plaintiff. 

Nevertheless, the plaintiff may sue again on the same cause of 

action.” (7 Witkin, supra, Judgments, § 441, p. 974.) This rule 

applies where “the judgment, although final, is not on the merits. 

Recovery was denied not for substantive defects in the plaintiff’s 

claim but for procedural reasons.” (Ibid.) 
13

The prior judgment here was entered after a trial on 

the merits, not for “procedural reasons.” The trial court found 

Jack did not carry his burden to prove that he was entitled to a 

constructive trust. This is a finding on the merits, not the 

process. Although the trial court failed to make express findings 

on every issue presented to it, its final judgment is “‘res 

judicata on matters which were raised or could have been raised, 

on matters litigated or litigable.’” (Bucur v. Ahmad (2016) 244

Cal.App.4th 175, 185–186, quoting Thibodeau v. Crum (1992) 4 

Cal.App.4th 749, 755.)

Because the judgment in the prior action precludes 

relitigation of Jack’s entitlement to a share of the Retirement 

Assets, the trial court erred when it rejected appellants’ res 

judicata objection and referred the matter to a referee. It is 

unnecessary for us to reach appellants’ remaining contentions.

Cross Appeal

Our resolution of the res judicata issue renders Jack’s 

cross-appeal moot. Our discussion of res judicata principles 

dictates that whatever rights Jack may have had to the assets 

(which he claims are one-third his) are now precluded by reason 

of the finality of Ventura Superior Court case no. 56-2007-

00288787.

Disposition

The order dated September 20, 2018 (Order for 

Referral to Lawrence Sorensen) and the order dated October 10, 

2018 (Partial Order re: Petition to Determine Entitlement to 

Share of Trust Assets; Petition for Delivery of Property Pursuant 

to Probate Code section 850(1)(2)(c)) are reversed. The crossappeal is dismissed as moot. Costs to appellants.
14

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.
Glen Reiser, Judge

Superior Court County of Ventura

______________________________

Smith law Firm and Craig R. Smith, for Defendants, 

Cross-Respondents and Appellants.

Thomas E. Olson, for Plaintiff, Cross-Appellant and 

Respondent.