1

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,

Respondent,

v.

CHARLES KINNEY,

Appellant.

A164148

(Alameda County Super. Ct.

No. RP13686482)

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 
2

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.
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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 
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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).)
5

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 
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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 951

and 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, 
7

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 
8

into a series of actions against Clark’s attorneys3 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 

3 E.g., Kinney v. Chomsky (C.D.Cal. Oct. 9, 2014, No. 14-5895 PSG

(MRWx)) 2014 U.S.Dist. LEXIS 200207.

4 E.g., Kinney v. State Bar of California (N.D.Cal., Aug. 29, 2016,

No. 16-cv-02277-MMC) 2016 U.S.Dist. LEXIS 115857.

5 E.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.

6 E.g., Kinney v. Gutierrez (C.D.Cal., Oct. 4, 2016, No. CV 16-6168 PSG)

2016 U.S.Dist. LEXIS 194305.

7 E.g., Kinney v. Cantil-Sakauye (N.D.Cal., June 22, 2017, No. 17-cv01607-DMR) 2017 U.S.Dist. LEXIS 96857; Kinney v. Cuéllar, supra,

2018 U.S.Dist. LEXIS 92314.
9

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 crosssuit 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 
10

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. 
11

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.
12

$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.
13

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.

11 In 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.”
14

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.
15

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, prepetition 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

12 The opening brief summarizes the arguments advanced in support of 

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 
16

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. 
17

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 

13 Equally 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.
18

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”.)
19

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

14 At one point, Kinney goes so far as to argue that “[a]ll vexatious 

litigant decisions against Kinney were based on non-judicial, ministerial, or 

administrative acts (e.g., labeling him a vexatious litigant without supporting 
20

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 preemption).” 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.
21

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 
22

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 thirdparty who was legally entitled to the money in payment of debt owed by 

Kinney on a judgment lien.

15 To 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.
23

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–
24

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 
25

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.
26

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.
Campbell v. Kinney – A164148

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.