Filed 2/11/15 Estate of Thomson CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

Estate of LINDA THOMSON, Deceased. B253895

RICHARD THOMSON, as Special Administrator, etc.,
Petitioner and Appellant,

v.
LORRAINE SHERZER,
Objector and Respondent. (Los Angeles County Super. Ct. No. KP013907)

APPEAL from an order of the Superior Court of Lo s Angeles County, Reva G. Goetz, Judge. Affirmed.

Robert L. Kern and Russell A. Da lton, Jr., for Petitioner and Appellant.

Lorraine Sherzer, in pro. per., for Objector and Respondent.

* * * * * *2 In this probate proceeding, petitioner Richard Thomson 1 appeals from the probate court’s order denying his petiti on for the court to make cert ain determinations. We find
no error and affirm.
FACTS AND PROCEDURE
1. Background Proceedings
Decedent Linda Thomson was the mother of Cameron Thomson. Cameron and codefendants were charged in the killing of two teenagers in 2008, when Cameron was a minor. The parents of the deceased teen agers filed a civil suit naming Cameron and Linda as defendants, among othe rs (the wrongful death ac tion). The parents of the deceased teenagers are Lorra ine Sherzer and Michael a nd Pamela Thompson (the wrongful death plaintiffs). 2 Against both Cameron and Linda, the complaint alleged wrongful death, negligence, and intentional inf liction of emotional distress. As to Linda, the complaint alleged she had negligently supervised Cameron and was also vicariously
liable for his willful acts. Th e complaint additionally allege d assault and battery against
Cameron.
Linda tendered the defense of the wr ongful death action to her homeowner’s insurance carrier, USAA Casua lty Insurance Company (USAA ). When USAA refused to defend the wrongful death action, Linda file d a suit against USAA for a declaration that the insurer had a duty to defend and indemn ify her (the insurance action). In 2010, USAA agreed to pay the wrongful death plai ntiffs the policy limit of $100,000. In exchange, they agreed to release their claims against Linda arising from the deaths of their children and dismiss the wrongful death action against her with prejudice. Linda also agreed to dismiss the insurance action against USAA.

1 The background of this case requires us to refer to several individuals who have the surname “Thomson.” To avoid confusion, we will refer to them by their first names.

2 Sherzer is the respon dent in this appeal.3 Linda died on August 4, 20 10, after she agreed to th e settlement but before she could sign the settlement agreements in th e insurance action and the wrongful death action. Linda’s counsel petitioned the probat e court to appoint her father, Richard, special administrator of her estate for the limited purpose of signing the settlement agreements. The probate c ourt granted the petition and i ssued letters of special administration that expire d on February 9, 2011. Linda’s counsel wrote to the wrongful de ath plaintiffs and US AA to inform them of Linda’s death. In pertinent part, he wrot e: “First, because of Linda’s death and the complexity of this case, the release language from the plaintiffs will have to include a release as to Linda’s son, Came ron. . . . [¶] . . . [¶] Under the terms of the revised releases, Linda’s estate, which includes Ca meron, will forever release and discharge USAA Casualty, thus eliminating the need for Cameron’s signature on anything. The plaintiffs would be discharg ing Linda’s estate, which incl udes Cameron, which will again eliminate the need for Cameron to sign anything.” USAA responded that, as far as it was concerned, the rel ease of all claims against USAA had to include Linda, “h er estate, Cameron, and any other person or entity acting or purporting to act on her behalf.” The wrongful death plainti ffs’ counsel responded as fo llows: “I understand that because of [Linda]’s death, [c ounsel] wishes to ha ve the settlement agreements revised to include a release as to Cameron. [¶] I do no t believe that [Linda]’s death has any affect on the necessary releases, and I believe the release presently includes a release of [Linda]’s heirs arising from her own liability . I do not see why Cameron should be released as part of th e settlement agreement for his own liability and we are not prepared to release him as part of the agreem ent that we have already reached.” Despite this apparently un resolved disagreement over the scope of the release, Richard signed the settlement ag reements in November 2010 as special administrator for Linda’s estate. The settlement agreement in the wrongful deat h action stated the plaintiffs were releasing and forever disc harging “Linda Thomso n and USAA Casualty Insurance Company (including their respec tive heirs, assignees, representatives, co-4 insureds, agents, attorneys, o fficers, directors, employees, parent companies, subsidiaries, affiliates, guardians, and a ny other person or en tity acting by or through them).” The wrongful death settlement agreement identifie d only the wrongful de ath plaintiffs and Linda as parties to the agreemen t. Pursuant to Linda’s moti on, the court in the wrongful death action determined the parties entered in to the settlement agreement in good faith. (Code Civ. Proc., § 877.6.) After that, the wron gful death plaintiffs filed a dismissal as to Linda only. In November 2012, Cameron moved for su mmary judgment in the wrongful death action on the ground that the settlement agreement released all the claims against Linda
and him. The wrongful death plaintiffs oppose d the motion, arguing the release applied only to Linda, and Ca meron’s liability arose from his i ndependent partic ipation in the killings, not Linda’s actions. The court de nied Cameron’s motion for summary judgment in January 2013.
2. Petition Giving Rise to This Appeal In June 2013, Richard filed the petition now at issue in the instant probate proceeding. He styled the petition: “Petiti on [(1)] to terminate proceedings, [(2)] for approval of waiver of account, [(3)] for a determination that issues raised by settlement agreements have been resolved , [(4)] for a determination that claims filed are invalid, [(5)] for a determination that petitioner has no obligation of any ki nd to any party and [(6)] such other relief as the court may deem to be appropriate for petitioner and the heirat-law of the decedent” (the petition). (Italics added.) Richard’s contentions on appeal relate to request No. 3 for a determination as to the settlement agreements. Sp ecifically, the petition prayed “[f]or orders determining
that the execution of the settl ement agreements which [Richa rd] signed pursuant to the order of [the probate] court are enforceable according to the terms thereof, including but not limited to the discharge and release of the he irs-at-law of the decedent as specified in the terms of the agreement relati ng to the [wrongful death] action; or, alternatively, in the
event that the terms of the agreement relating to the [wrongful death] action are not determined to be enforceable, that the Letters of Special Administration of [Richard] be5 reinstated and the consideration ($100,000, to gether with interest at the legal rate) be ordered returned and paid fort hwith.” Richard wanted the pr obate court to determine the settlement agreement in the wr ongful death action released Cameron because he was the
heir and co-insured of Linda. In other word s, he wanted the probate court to make the same determination the court in the wrong ful death action had refused to make on Cameron’s motion for summary judgment. The wrongful death plainti ffs filed a response to the petition. They noted they were not parties to or claimants in the prob ate proceeding, but they nevertheless asked the court to deny the orders Rich ard requested regarding the settlement. They explained Cameron had already moved in the wrongful death action for the same determination Richard was seeking, and they sought judicial notice of the summary judgment pleadings and ruling. The probates notes 3 for the hearing recommended in pertinent part as follows: “Recommend deny as to discharge & releas e of heirs - improper request - terms & effectiveness of settlement agreement se parate from a report of acts of special administrator [¶] Recommend deny as to ‘rein state’ letters of special administration - new petition for appointment require d - letters expired 2/9/11.” After hearing oral argument from the wro ngful death plaintiffs and Richard, the probate court took the petition unde r submission. It later issued a minute order stating the request for an order determining the meanin g of the settlement ag reement was “denied with prejudice.” Richard filed a notice of appeal from the minute order.

3 As explained in the California Prac tice Guide on probate: “[M]any probate departments have staff attorneys who review all probate pleadings before their respective hearing dates [citation]. The staff attorneys then issue ‘c alendar notes’ (or ‘probate notes’) indicating whether the pleadings are ‘in order’ (e.g., ‘recommended for approval’ or ‘RFA’) or ‘defective,’ with the reasons usually given. These notes are usually available to counsel several da ys prior to the hearing (althou gh precise availability varies from county to county).” (R oss & Cohen, Cal. Practice Gu ide: Probate (The Rutter Group 2014) ¶ 3:538, pp. 3-124.10 to 3-124.11 (rev. # 1, 2014).)6 DISCUSSION On appeal, Richard invites us to interpre t the settlement agreement in the wrongful death action and determine the agreement releas ed the claims against Cameron as well as those against Linda. We decline the invitation. The probate court denied the request for such a determination. Richard completely fa ils to show the court erred in refusing to
decide the issue. We indulge all presumptions in favor of the probate court’s correctness, and we presume it was correct based on any ra tionale supported by the record. ( State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 .) Richard has the burden of affirmatively demonstrating error. ( Ibid. ) Richard offers no authority demonstrati ng the probate court must determine the meaning of the settlement agre ement in the wrongful death action. Nor does he offer a good reason why the probate court should have done so, as opposed to the court where the wrongful death action is pending. Th at action is pending in the San Bernardino County Superior Court; the par ties in that action have begu n to litigate the issue in the summary judgment proceedings there; and, notably, the agreement itself provides that any action to enforce or interpret the agreem ent shall be brought in the San Bernardino County Superior Court. No doubt the cour t in the wrongful death action is far more familiar than the probate c ourt with the parties to the agreement and the claims the agreement purports to settle. It was eminently sensible for the probate court to abstain from interfering and allow the San Bernardino court to determine the meaning of the settlement agreement, whether that be through further motion practice or at trial. Richard argues the probate court accept ed a stipulation from the parties that it
could decide the issue. This occurred at th e hearing on the petition. The wrongful death plaintiffs argued primarily that the probat e court had no jurisdiction to make the requested determination because the issue had to do with claims against Cameron, not claims against Linda’s estate. They furthe r argued the court could nevertheless look at the documentary evidence submitted on the summary judgment motion in the wrongful
death action and determine from that eviden ce that the settlement agreement did not7 release the claims against Came ron. Accordingly, they agreed “to submit the issue of to whom the settlement agreement a pplies” to the probate court. Even if they stipulated the probate court could decide the issue, that does not mean the court was bound to do it, especially wh en common sense dictated otherwise. The agreement settled causes of action in the wro ngful death action. That action is still pending. Cameron is asserting a defense in that action based on the release in the settlement agreement. The court in San Bernardino sh ould ultimately determine the validity of the defense.
DISPOSITION The order is affirmed. Respond ent shall recover costs on appeal.

FLIER, J.
WE CONCUR:

BIGELOW, P. J.

GRIMES, J.