Petty v. The Corcoran Gallery of Art CA2/7

Filed 8/20/20 Petty v. The Corcoran Gallery of Art CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
SUSANNE JILL PETTY, B293796
TRUSTEE,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. 18STPB03226)
v.
THE CORCORAN GALLERY OF
ART, et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daniel Juarez, Judge. Affirmed.
Sheppard, Mullin, Richter & Hampton LLP, James M.
Burgess, Karin Dougan Vogel, and Julie A. Bauman for Plaintiff
and Respondent.
Paul Hastings LLP, Valerie Marek, and Kamila LaBerge
for Defendants and Appellants.
__________________________
INTRODUCTION
The Corcoran Gallery of Art and the Trustees of the
Corcoran Gallery of Art appeal from a judgment granting
Susanne Jill Petty’s petition requiring Corcoran to return
artwork and a cash gift to the Alice C. Tyler Art Trust. Corcoran
argues that, because it did not generally appear in this action,
the probate court lacked jurisdiction and the judgment is void.
Corcoran also asserts that the probate court erred in entering
judgment because Petty failed to properly serve the petition;
Petty untimely served its response to the probate court’s notes;
and the court failed to rule on Corcoran’s motion for
reconsideration. Corcoran also contends that a District of
Columbia court order restricted its ability to comply with the
probate court’s judgment.
We conclude that the trial court properly entered judgment.
By making a general appearance through a motion for
reconsideration, Corcoran waived its objections to any defects in
service or to lack of personal jurisdiction. Further, because
Corcoran did not oppose the petition and only asserted its
arguments in a defective motion for reconsideration, Corcoran
forfeited those arguments. Even if Corcoran’s arguments are
considered, they lack merit. Therefore, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. Corcoran and the Tyler Trust
1. Corcoran
The Trustees of the Corcoran Gallery of Art is a nonprofit
corporation that owns and operates the Corcoran Gallery of Art, a
private art museum in the District of Columbia (collectively,
Corcoran). In 1869, through a deed of trust, William Wilson
2
Corcoran established the Corcoran as “‘an institution in
Washington City, to be ‘dedicated to Art,’ and used solely for the
purpose of encouraging the American Genius, in the production
and preservation of works pertaining to the ‘Fine Arts,’ and
kindred objects.’” Several years later Corcoran established
Corcoran College of Art & Design, devoted to the teaching of art
and design. Corcoran College was integrated into Corcoran,
becoming an accredited school of art and design.
2. Tyler Trust
In October 1974 Alice C. Tyler, a resident of Los Angeles,
established a revocable trust to hold certain of her assets. In
April 1988, pursuant to California law, Tyler revoked and
amended certain provisions of this trust, renaming it the Alice C.
Tyler Art Trust. The trust held over 100 works by artist Suzanne
Regan Pascal (the Pascal collection)1 and provided that, upon
Tyler’s death, the Pascal collection shall be transferred to a
museum for exhibition. The trust’s terms provided that the
museum would receive a cash gift “to assist with the cost of
securing and otherwise maintaining the collection . . . .”
According to the terms of the trust, the museum would
receive the Pascal collection subject to specified conditions
regarding its display. The trust’s terms further provided that,
should the museum, in the trustees’ “sole discretion,” fail to
comply with these conditions, the trustees may terminate the
1 The Pascal collection contained glass sculptures, paintings,
and other forms of art. Pascal’s glass sculptures were described
as unique because she was the only sculptor who carved glass
using only a hammer and chisel, “bringing into form realistic
sculptures.”
3
museum’s rights in “any property” received, and the museum
shall return “forthwith” all property to the trust.
3. Tyler Trust’s Conditional Gift to Corcoran
After Tyler’s death in 1993, pursuant to the terms of the
trust and a written agreement, the trust transferred the Pascal
collection to Corcoran. Based on the Tyler trust’s requirements,
as conditions of receiving the Pascal collection, Corcoran agreed
to establish a permanent gallery known as the “Alice and John
Tyler Gallery,” display part of the Pascal collection at least two
months each year, and keep at least one work from the Pascal
collection in the Alice and John Tyler Gallery “at times when
guest or other collections are on display.” Under the agreement,
Corcoran received $1 million in cash “to assist with the cost of
securing and otherwise maintaining” the Pascal collection in its
permanent gallery at Corcoran.
As also required by the Tyler trust, the agreement further
provided that “[t]he determination from time to time of whether
any or all of the conditions herein set forth have been fulfilled
shall be made by and within the sole discretion of the [Tyler
trust] Trustees. [¶] In the event the [Tyler trust] Trustees shall
determine that [Corcoran] has not complied with the conditions
set forth in this Agreement, the [Tyler trust] Trustees may
terminate all rights of [Corcoran] in the [Pascal collection]” and
Corcoran “shall return to the [Tyler trust] Trustees forthwith”
the Pascal collection and the $1 million cash gift. The agreement
further provided, in the event of termination, “All expenses of
packaging, shipping, insurance, delivery and other expenses
related to returning the work of art shall be borne by [Corcoran].”
The agreement prohibited Corcoran from selling the Pascal
collection, and Corcoran agreed that “all rights for copies or
4
derivative works remain with the artist and [Corcoran] agrees
that nothing may be reproduced without the express permission
of the artist.” The agreement provided, “In the event of any suit
or proceeding the prevailing party therein shall be entitled to
recover its attorneys fees and other expenses.” The agreement
further stated that it “shall be governed by and construed in
accordance with the laws of the State of California.”
B. Corcoran Effectively Dissolves As an Independent Entity
1. Corcoran’s Transfer Agreement with the National
Gallery of Art
Corcoran honored the terms of the agreement with the
Tyler trust for 20 years. After struggling financially for over a
decade, Corcoran considered a potential acquisition by the
National Gallery of Art, a quasi-governmental institution in the
District of Columbia. Because of these financial difficulties, on
May 15, 2014 Corcoran and the National Gallery executed an Art
Accession and Custodial Transfer Agreement (transfer
agreement).2 Under the transfer agreement, Corcoran agreed to
“transfer and deliver into the custody, care and possession” of the
National Gallery the collection of “art works owned or controlled
by the Corcoran.” Corcoran’s art works would “be held by [the
National Gallery] for the benefit of Corcoran.” Pursuant to the
transfer agreement, the National Gallery had the right to decide
which of Corcoran’s artworks to accession3 into its art collection.
A related side letter dated June 19, 2014 directed that, once
2 The transfer agreement provided that “Corcoran will
continue as a legal entity committed to its original mission.”
3 To “accession” means to formally make something part of
one’s collection.
5
the National Gallery determined which of Corcoran’s artworks it
would and would not accession, after discussion with the
National Gallery, Corcoran will distribute works not accessioned
to museums or other institutions within the District of Columbia.
However, Corcoran retained the right, after consultation with the
National Gallery, to designate “a non-DC institution [as] the most
suitable candidate for a particular work” without the work “first
[being] offered to DC institutions.” The side letter further
provided that, before any artwork was distributed to an
institution located outside of the District of Columbia, “either the
Office of the Attorney General shall state in writing that it does
not object, . . . or the proposed deaccessioning or distribution shall
be subject to a further cy pres proceeding in the District of
Columbia Superior Court.” Finally, the transfer agreement
obligated Corcoran and the National Gallery to “agree on an
appropriate policy and program for distribution of [art works not
accessioned by National Gallery] to other art museums . . . ,
which shall include appropriate provision for any then-existing
liabilities, commitments and obligations relating to, associated
with or arising from” these art works.4
2. Corcoran’s Discussions with Tyler Trust
In July 2014 Corcoran’s interim director, Peggy Loar,
informed Susanne Jill Petty, a Tyler trust trustee,5 that
4 Concurrently with the execution of the transfer agreement,
Corcoran entered into agreements with George Washington
University pursuant to which the Corcoran agreed to transfer its
building and Corcoran College to George Washington University.
5 Petty was a trustee of the Tyler trust when it contracted
with Corcoran. At the time she filed the petition in this action,
6
“Corcoran is completing an agreement” with the National Gallery
pursuant to which “[a]ll works owned or controlled by the
Corcoran will go to [the National Gallery].” After stating that
Corcoran “has honored the terms” of the Pascal agreement, Loar
further advised that the Pascal collection “while controlled by the
Corcoran [was] never accessioned and this provides some
flexibility in how the works are now treated.” Loar also told
Petty that the National Gallery would not be accessioning the
Pascal collection. Loar requested that Petty advise Corcoran
whether “there are any museums or venues you are aware of that
would be interested in the [Pascal collection].” Loar further
stated that Corcoran would “only transfer the works if the
receiving party agrees to any current or modified conditions. . . .
If we cannot find any venue that will accept the current or
modified conditions, then we would propose the most appropriate
step would be to return the works to the family.” Corcoran
offered to “pack and ship [the Pascal collection] at [its] expense.”
3. The District of Columbia Cy Pres Proceeding
On June 17, 2014 Corcoran filed a cy pres proceeding in the
District of Columbia Superior Court to obtain approval of its
proposed transaction with National Gallery and George
Washington University’s proposal to acquire Corcoran College
and Corcoran’s building. Corcoran did not give the Tyler trust
notice of the cy pres proceeding, and the Tyler trust did not
participate in the proceeding. The District of Columbia court
summarized the issues to be adjudicated: “1) [has Corcoran]
established that it is impracticable to carry out the Deed of Trust
Petty was the Tyler trust’s sole remaining trustee. Petty is
Pascal’s daughter.
7
that created the Corcoran given the Corcoran’s current financial
condition; and 2) if so, is the plan proposed by the Trustees as
near as possible to the intent of William Wilson Corcoran when
he established the Trust.”
On August 18, 2014,6 finding “it painful to issue an Order
that effectively dissolves the Corcoran as an independent entity,”
the District of Columbia court ruled, “this Court believes that
approval of [Corcoran’s] proposal is necessary, given the
Corcoran’s financial circumstances, and further believes that the
proposal properly effectuates Mr. Corcoran’s original intent” in
establishing Corcoran.7 Because it was “impracticable to carry
out the [Corcoran’s] existing Deed of Trust,” the court, under the
cy pres doctrine, approved Corcoran’s entry into the various
agreements with the National Gallery, including the transfer
agreement and the side letter.8 The court’s order provided that
“the Corcoran Deed of Trust and any other applicable instrument
is deemed to be revised to the extent necessary to permit
6 The District of Columbia court issued a 49 page
“memorandum opinion” and a four page “order.”
7 The District of Columbia Code provides, “if a particular
charitable purpose is or becomes . . . impracticable . . . (3) The
court may apply cy pres to modify or terminate the trust by
directing that the trust property be applied or distributed, in
whole or in part, in a manner consistent with the settlor’s
charitable purposes.” (D.C. Code, § 19-1304.13.)
8 The August 18, 2014 order also approved the agreements
necessary to transfer Corcoran College and the Corcoran’s
building to George Washington University and permit the
college’s continued operation as a part of George Washington
University.
8
[Corcoran] to perform and implement” the transfer agreement
and related agreements “according to their terms.” The order
further stated, “The National Gallery of Art shall take and hold
the Corcoran’s collection of art, in the manner and for the
purposes described in the [transfer agreement], and shall adhere
to the restrictions as otherwise applicable to the collection, as
those restrictions have been understood and implemented
previously by [Corcoran].”9
4. Tyler Trust’s Termination of the Pascal Agreement
On October 16, 2014 the Tyler trust notified Corcoran that,
due to Corcoran’s noncompliance with the Pascal agreement’s
conditions, the “Trustees wish to terminate all the rights of
[Corcoran] in the [Pascal collection].” The Tyler trust demanded
the return of both the Pascal collection and the $1 million cash
gift. After receipt of this termination notice, Corcoran did not
contest it failed to comply with the Pascal agreement or the Tyler
trust’s right to terminate the Pascal agreement.
5. Corcoran’s Retention of the Conditional Gift
The Tyler trust had identified two institutions outside the
District of Columbia that wished to display all or part of the
Pascal collection. Declining to comply with the Tyler trust’s
request to transfer the Pascal collection, on January 30, 2015
9 In its August 18, 2014 decision, when summarizing the
National Gallery and George Washington University proposals,
the court noted that, “‘[a]s part of the transfers of art to the
[National Gallery] and the College . . . to [George Washington
University], any existing donor restrictions that are applicable to
the particular assets’ will remain in place and be fulfilled by [the
National Gallery] or [George Washington University].”
9
Corcoran advised Petty that the District of Columbia order
“modified any restrictions on works donated to the Corcoran to
the extent necessary to permit the consummation of the [National
Gallery] and [George Washington University] transactions by
providing, in relevant part, that ‘any other applicable instrument
is deemed to be revised to the extent necessary to permit
[Corcoran] to perform and implement the Agreements according
to their terms.’” Corcoran further stated that the National
Gallery “is considering whether it will accession any of the
[Pascal collection] into their collection” and that art works that
the National Gallery “determines not to accession will be
considered for distribution to other qualified institutions.”
Corcoran also stated, “works not accessioned by the [National
Gallery] must stay in DC unless we get the permission of the
District’s Attorney General or the court to send the work to a
location outside of the District.”
Corcoran retained the Tyler trust’s cash gift, and the
National Gallery holds the Pascal collection in storage.
C. California Probate Proceedings
1. Petty’s Petition
On April 5, 2018 Petty filed a petition in Los Angeles
Superior Court seeking an order directing Corcoran to return the
Tyler trust assets under Probate Code section 850 and confirming
the existence of the Tyler trust under Probate Code section
17200, subdivision (a).10 Because the Pascal collection was
10 Probate Code section 850, subdivision (a)(3)(B), provides a
trustee “may file a petition requesting that the court make an
order . . . [w]here the trustee has a claim to real or personal
property, title to or possession of which is held by another.”
10
“hidden away” in storage, which violated the express terms of the
“conditional gift,” Petty sought “an order of this Court requiring
conditional gift beneficiary, the Corcoran, to return the [Pascal
collection] and its associated $1 million cash gift, to [Petty] as
Trustee of the Trust.”
2. Initial Hearing on the Petition
The probate court held a hearing on the petition on
June 14, 2018. At this hearing counsel for Corcoran appeared
without making a jurisdictional objection. Because the probate
notes highlighted that Petty had not served the petition and
notice of hearing in compliance with Probate Code section 851,
Petty requested a continuance to properly serve the documents.
The court set another hearing for July 30, 2018. Counsel for
Corcoran did not object to the continued hearing date, but
indicated that Corcoran intended to file written objections. The
probate court confirmed Corcoran could file written objections in
advance of the continued hearing.
On July 23, 2018 Petty filed a further proof of service in
connection with the July 30 hearing. On July 26, 2018
Corcoran’s counsel emailed a letter to Petty’s counsel contesting
Petty’s service of the petition and notice of hearing on Corcoran.
Corcoran’s counsel stated Petty’s “purported proof of service
cannot cure [Petty’s] underlying failure to satisfy the notice
requirements prior to the July 30, 2018 hearing.”
Section 17200, subdivision (a), provides “a trustee or beneficiary
of a trust may petition the court under this chapter concerning
the internal affairs of the trust or to determine the existence of
the trust.”
11
3. The Probate Court Posts Updated Notes
Stating the notes were last changed on the afternoon of
July 25, 2018, the court posted on its website updated probate
notes. The probate notes contained a section entitled, “Matters to
Clear,” which included “new [notes] after further review”
regarding Petty’s service of the petition and the proof of service
filed on July 23, 2018. The notes also stated that a description of
the property and a right to answer legend were not included in
the notice of hearing.
On Friday, July 27, 2018 at 4:12 p.m. Petty filed a
supplement to the petition addressing the probate notes. The
supplement responded to each issue in the probate notes
detailing Petty’s efforts to serve Corcoran with the petition and
notice of hearing and attaching amended proofs of service and
related documents. Petty also pointed out that, at the June 14,
2018 hearing, the probate court allowed her to serve an amended
notice of hearing, which Petty accomplished. According to Petty,
she served the amended notice of hearing on June 22, 2018
containing the required description of the property and right to
answer legend.
4. July 30, 2018 Hearing
Corcoran did not file any objections or appear at the July
30, 2018 hearing. After reviewing the supplement and hearing
from Petty’s counsel, the probate court found that notice was
proper and that Petty cleared the probate notes. At the hearing
the probate court ruled, “With no appearance by [Corcoran], and
I’m finding that notice is proper, and I’m clearing the notes in
total on this matter. The court is going to grant the petition as
requested.”
12
Petty’s counsel notified Corcoran’s counsel of the probate
court’s order that same day. On August 8, 2018 Petty served and
lodged a proposed judgment. Corcoran did not file objections to
the proposed judgment.
5. Corcoran’s Motion for Reconsideration
Two weeks later, on August 13, 2018 Corcoran filed a
motion for reconsideration seeking to “modify, amend, or revoke”
the probate court’s July 30, 2018 order. Corcoran set the hearing
for September 14, 2018. Corcoran did not apprise the probate
court of the motion. Although it did not file a motion to quash
service of the petition, Corcoran argued the probate court’s order
violated Corcoran’s due process rights “because [Corcoran] was
not served with process . . . and never submitted to this Court’s
jurisdiction.” Corcoran also argued that Petty had failed to
timely serve Corcoran with her comments to the probate notes
before the July 30, 2018 hearing. Moreover, Corcoran asserted
the probate court’s order imposed obligations on Corcoran that
conflicted with the District of Columbia order because that order
“prohibits” removal of the Pascal collection from the District of
Columbia “absent the express authorization of the Attorney
General of the District of Columbia . . . or an order from the
District of Columbia Superior Court.”
Corcoran also stated it relied on representations that the
Tyler trust was no longer in existence and requested discovery
“relating to the trust’s existence.” Finally, Corcoran asserted
that it had “other good defenses to the allegations of the Petition”
and “[was] entitled to a fair opportunity to present those
defenses.” David Julyan, Corcoran’s general counsel, filed a
declaration addressing the substantive terms of the Pascal
agreement, the transfer agreement with the National Gallery,
13
and the District of Columbia cy pres proceeding. Julyan stated,
“on information and belief, [the $1 million gift was] exhausted
over the period since 1994 . . . .” Julyan attached to his
declaration the District of Columbia decision and order,
Corcoran’s transfer agreement with the National Gallery, and
Corcoran’s correspondence with the Tyler trust.
6. Judgment on the Petition
On August 15, 2018 the probate court, apparently unaware
of the motion for reconsideration, entered judgment on the
petition.11 The judgment confirmed the existence of the Tyler
trust, ordered Corcoran to return the Pascal collection and its
accompanying cash gift to Petty in her capacity as trustee of the
Tyler trust. The judgment also provided that “[Corcoran] shall
pay [Petty’s] attorneys’ fees and costs.” The judgement also
stated, “Notice of the hearing on the petition has been given as
required by law.” Petty served notice of entry of judgment on
August 17, 2018.
7. Corcoran’s Further Support of Reconsideration
On August 31, 2018 Petty opposed Corcoran’s
reconsideration motion, arguing that the probate court lacked
jurisdiction to hear the motion because “an appealable judgment
has been entered.” Petty also argued that Corcoran had waived
any jurisdictional challenge by generally appearing at the June
14, 2018 hearing, and that the Pascal collection was not subject
to the District of Columbia order. In its reply memorandum
Corcoran argued the court erred by entering judgment while
11 The probate court entered judgment against the Trustees of
the Corcoran Gallery of Art and the Corcoran Gallery of Art.
14
Corcoran’s motion for reconsideration was pending. Corcoran
argued, “had the Court properly considered the merits of that
Motion, the Corcoran believes the Court would have found that it
was not appropriate to sign the Judgment.”
The probate court did not rule on Corcoran’s motion for
reconsideration.12
Corcoran timely appealed.
DISCUSSION
A. Standards of Review
Whether a judgment is void due to improper service or lack
of jurisdiction is a question of law that we review de novo.
(Sakaguchi v. Sakaguchi (2009) 173 Cal. App. 4th 852, 858;
Aquila, Inc. v. Superior Court (2007) 148 Cal. App. 4th 556, 568.)
‘“When the facts giving rise to jurisdiction are conflicting, the
trial court’s factual determinations are reviewed for substantial
evidence. [Citation.] Even then, we review independently the
trial court’s conclusions as to the legal significance of the facts.’”
(Ibid.) We likewise review de novo the meaning and intent of an
unambiguous written agreement. (Gray v. McCormick (2008) 167
Cal. App. 4th 1019, 1024.)
“It is the appellant’s burden to demonstrate the existence of
reversible error.” (Del Real v. City of Riverside (2002) 95
Cal. App. 4th 761, 766.) When a matter is left to the court’s
12 The probate court later explained its failure to rule on the
motion for reconsideration before entering judgment, “Frankly at
that moment since the court doesn’t retroactively or prospectively
look into the calendar for other matters, frankly I didn’t even see
your motion for reconsideration that was there at that point. You
had filed it, I saw, but it was not on the court’s radar.”
15
discretion, we review the court’s exercise of that discretion under
the abuse of discretion standard and will not reverse if the court’s
decision “falls within the permissible range of options set by the
applicable legal criteria.” (Cahill v. San Diego Gas & Electric Co.
(2011) 194 Cal. App. 4th 939, 957.)
We will affirm a correct judgment even if the trial court’s
reasoning was faulty. “‘If right upon any theory of the law
applicable to the case, it must be sustained regardless of the
considerations which may have moved the trial court to its
conclusion.’” (City of National City v. Wiener (1992) 3 Cal. 4th
832, 850.)
B. The Probate Court Did Not Err in Granting the Petition
on July 30, 2018
1. Corcoran Did Not Oppose Petty’s Petition
At the June 14, 2018 initial hearing Corcoran’s counsel
confirmed its ability and intention to file objections to the petition
before the continued hearing on July 30. After failing to file
objections, Corcoran did not appear at the July 30 hearing. At
the July 30 hearing, after reviewing Petty’s response addressing
the probate notes, and, finding no objections to the petition, the
probate court cleared the probate notes and granted Petty’s
petition.13 In its motion for reconsideration, Corcoran did not
contest that Petty lawfully terminated the Pascal agreement
because of Corcoran’s breach of that agreement. Corcoran
13 At a subsequent hearing the probate court explained that,
at the July 30 hearing, “I don’t know that I had any other option
but to grant the petition at that point. There was no reason not
to at that point. I assumed very much so that any objections
were waived to the petition, at least were not being brought forth
to the court.”
16
forfeited its ability to argue that Petty’s petition lacked merit
because Corcoran never made that argument in the probate
court. (See Quiles v. Parent (2018) 28 Cal. App. 5th 1000, 1013
[“‘[f]ailure to raise specific challenges in the trial court forfeits the
claim on appeal’”]; Mundy v. Lenc (2012) 203 Cal. App. 4th 1401,
1406 [‘“[a]s a general rule, failure to raise a point in the trial
court constitutes [a] waiver and appellant is estopped to raise
that objection on appeal”’]; Premier Medical Management
Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163
Cal. App. 4th 550, 564 [same].)
Here, other than asserting that the District of Columbia
order revised the Pascal agreement, which prevents Corcoran
from returning the Pascal collection to Petty in California,
Corcoran does not contest the enforceability of the termination
provisions in the Pascal agreement. Corcoran also forfeited its
right to contest the petition’s merits by failing to raise arguments
in its brief on appeal. (See Tiernan v. Trustees of Cal. State
University & Colleges (1982) 33 Cal. 3d 211, 216, fn. 4 (issue not
raised on appeal “may therefore be deemed waived”]; Cox v.
Bonni (2018) 30 Cal. App. 5th 287, 311 [plaintiff forfeited
arguments not addressed in her opening brief]; Sierra Palms
Homeowners Assn. v. Metro Gold Line Foothill Extension
Construction Authority (2018) 19 Cal. App. 5th 1127, 1136
[appellant forfeited challenge to issue not raised on appeal].)
2. The Probate Court Properly Enforced the Conditions
Subsequent in the Pascal Agreement
Even if Corcoran had not forfeited its arguments regarding
the petition’s merits, the probate court did not err in enforcing
the Pascal agreement’s termination provisions. As set forth in
the petition, Corcoran accepted the Pascal collection subject to
17
the conditions set forth in the Pascal agreement. Although
Corcoran adhered to the Pascal agreement’s terms for 20 years,
there is no dispute that Corcoran breached those conditions when
it stopped displaying the Pascal collection. Petty then exercised
its right to terminate the agreement.
The Pascal agreement provided the Tyler trust, based on a
“determination” made in its “sole discretion,” “may terminate all
rights of [Corcoran] in the works of art,” and that “upon
termination of [Corcoran’s] rights, [Corcoran] shall return to the
Trustees forthwith all of the works of art . . . together with the
cash gift . . . .” These conditions, given this specific language in
the Pascal agreement, were enforceable under California law as a
gift made subject to a condition subsequent. In L.B. Research &
Education Foundation v. UCLA Foundation (2005) 130
Cal. App. 4th 171, the court held that, “if the donor clearly
manifests an intention to make a conditional gift, that intention
will be honored. [Citation.] The gift will be construed as one of a
fee simple subject to a condition subsequent if ‘ . . . it is expressly
provided in the instrument that the transferee shall forfeit it or
that the transferor or his heir or a third person may enter for
breach of the condition.’” (Id. at p. 178; accord, City of Palm
Springs v. Living Desert Reserve (1999) 70 Cal. App. 4th 613, 621
[“the owner of property may transfer it to another on the
condition that if the latter should fail to perform a specified act
the transferee’s interest shall be forfeited either to the transferor
or to a designated third party”]; see Walton v. City of Red Bluff
(1991) 2 Cal. App. 4th 117, 125 [“The owner of property may
transfer it, inter vivos or by will, to another person and provide
that if the latter should fail to perform a specified act his interest
18
should be forfeited. In such a case the interest of the transferee
is subject to a condition subsequent and is not held in trust”].)
Accordingly, the probate court did not err in enforcing the
conditions subsequent in the Pascal agreement. (Wind Dancer
Production Group v. Walt Disney Pictures (2017) 10 Cal. App. 5th
56, 68-69 [“‘[i]f contractual language is clear and explicit and does
not involve an absurdity, the plain meaning governs’”]; Marzec v.
Public Employees’ Retirement System (2015) 236 Cal. App. 4th 889,
910 [‘“[w]hen the contract is clear and explicit, the parties’ intent
is determined solely by reference to the language of the
agreement”’]; see Civ. Code, § 1638 [“language of a contract is to
govern its interpretation, if the language is clear and explicit, and
does not involve an absurdity”].)
C. The Probate Court Did Not Err in Entering Judgment on
August 15, 2018, Even Though Corcoran Had Filed a
Motion for Reconsideration
Two weeks after the probate court granted the petition,
Corcoran filed a motion for reconsideration of the court’s order.
However, although Petty had submitted a proposed judgment,
Corcoran did not advise the probate court of the motion, even
though it was set for hearing on September 14, 2018. The
probate court, not knowing Corcoran’s motion was filed, entered
judgment without ruling on the motion.
Once a court enters judgment, it loses jurisdiction to rule
on a motion for reconsideration. (See APRI Ins. Co. v. Superior
Court (1999) 76 Cal. App. 4th 176, 180 (APRI) [“we conclude that
the trial court may not grant reconsideration after judgment has
been entered]; Magallanes v. Superior Court (1985) 167
Cal. App. 3d 878, 882 [“[t]he trial court had power to reconsider
the ruling so long as no final judgment had been entered and the
19
case was still pending before the court”]; see also Kasper v.
Cedars-Sinai Medical Ctr. (1998) 62 Cal. App. 4th 780, 782 [“the
trial court’s entry of judgment . . . operated as an implied denial
of the pending reconsideration motion”]; Ramon v. Aerospace
Corp. (1996) 50 Cal. App. 4th 1233, 1237 [“[a] final judgment
terminates the litigation between the parties and leaves nothing
in the nature of judicial action to be done other than questions of
enforcement or compliance”].) “The issue is jurisdictional. Once
the trial court has entered judgment, it is without power to grant
reconsideration. The fact that a motion for reconsideration may
have been pending when judgment was entered does not restore
this power to the trial court.” (APRI, at p. 182.)
Corcoran argues the probate court committed “error” by
entering judgment on Petty’s petition “without addressing” its
pending motion for reconsideration. In support, Corcoran relies
on the court’s comment in APRI that the “court should have
considered the merits of the motion for reconsideration.” In the
next sentence, however, the court in APRI held, “But, once the
trial court entered judgment, it could not reconsider the ruling on
the motion to quash.” (APRI, supra, 76 Cal.App.4th at p. 182.)
Although Petty served Corcoran with a proposed judgment,
Corcoran did not object to the proposed judgment or apprise the
probate court of the motion for reconsideration. Because the
probate court entered the judgment that Petty submitted, as the
court in APRI held, the probate court was without jurisdiction to
adjudicate the motion for reconsideration. (Betz v. Pankow (1993)
16 Cal. App. 4th 931, 937.) Corcoran has not cited any authority
to support its contention that the probate court’s entry of
judgment prior to ruling on Corcoran’s motion requires reversal
of the judgment.
20
D. Any Error in Entering Judgment While Corcoran’s
Motion for Reconsideration Was Pending Was Harmless
Even if the probate court erred in entering judgment while
the motion for reconsideration was pending, any error was
harmless because the motion was not a proper motion for
reconsideration and, in any event, lacked merit.
1. Corcoran’s Motion for Reconsideration Was Improper
Under Code of Civil Procedure Section 1008
Code of Civil Procedure section 1008, subdivision (a),
provides that, within 10 days after service of a written notice of
entry of an order, a party may make a motion to reconsider the
order “based upon new or different facts, circumstances, or law.”
“The moving party also must provide a satisfactory explanation
for the failure to make the showing at or before the time the
challenged order was issued.” (New York Times Co. v. Superior
Court (2005) 135 Cal. App. 4th 206, 208.) Section 1008,
subdivision (e), further provides, “No application to reconsider
any order or for the renewal of a previous motion may be
considered by any judge or court unless made according to this
section.” Under section Code of Civil Procedure 1008, subdivision
(e), the trial court generally has no jurisdiction to hear a motion
for reconsideration that does not comply with the requirements of
the section. (Kinda v. Carpenter (2016) 247 Cal. App. 4th 1268,
1278; Kerns v. CSE Ins. Group (2003) 106 Cal. App. 4th 368, 391.)
Corcoran’s motion for reconsideration failed to set forth in
an affidavit (or otherwise) “what new or different facts,
circumstances or law are claimed to be shown.” In its
reconsideration motion, Corcoran set forth grounds for relief
based on information available before the July 30, 2018 hearing.
Under these circumstances, Corcoran’s motion was defective as a
21
matter of law. (See Even Zohar Construction & Remodeling, Inc.
v. Bellaire Townhouses, LLC (2015) 61 Cal. 4th 830, 839 [“[c]ourts
have construed section 1008 to require a party filing an
application for reconsideration or a renewed application to show
diligence with a satisfactory explanation for not having presented
the new or different information earlier”]; Hennigan v. White
(2011) 199 Cal. App. 4th 395, 406 [“trial court correctly denied
Hennigan’s motion for reconsideration to admit her doctor’s
supplemental declarations and her own declaration, as the
testimony did not constitute ‘new or different facts’ for purposes
of granting reconsideration”].)
Thus, any error in not hearing the motion for
reconsideration was harmless because the motion could not have
been properly granted. Corcoran cannot demonstrate prejudice.
(In re Marriage of Goddard (2004) 33 Cal. 4th 49, 57 [“the
presumption in the California Constitution is that . . . any error
as to any matter of procedure,’ is subject to harmless error
analysis and must have resulted in a ‘miscarriage of justice’ in
order for the judgment to be set aside. (Cal. Const., art. VI,
§ 13.)”]; Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village
Square Venture Partners (1997) 52 Cal. App. 4th 867, 884
[“[p]rocedural defects which do not affect the substantial rights of
the parties do not constitute reversible error”]; see also Code Civ.
Proc., § 475 [“[t]he court must, in every stage of an action,
disregard any error, improper ruling, instruction, or defect, in the
pleadings or proceedings which, in the opinion of the court, does
not affect the substantial rights of the parties”].)
E. Corcoran’s Motion for Reconsideration Also Lacked Merit
Arguing the same grounds it asserted in its defective
motion for reconsideration, Corcoran contends that the probate
22
court erred in granting the petition because the court lacked
jurisdiction over Corcoran, Petty did not timely serve its response
to the court’s probate notes, and the District of Columbia order
revised the Pascal agreement, restricting Corcoran’s ability to
return the Pascal collection to California. Even if Corcoran’s
motion for reconsideration had been legitimate and these issues
were reviewable, each ground asserted lacks merit.
1. Rather than Properly Contesting Jurisdiction,
Corcoran’s Motion for Reconsideration Constituted a
General Appearance
Because Corcoran’s motion for reconsideration sought
substantive merits relief, Corcoran waived its objections to
personal jurisdiction and any alleged service defects, and
Corcoran submitted to the probate court’s jurisdiction.
a. Applicable law
“[D]efective service is not fatal to personal jurisdiction if
the defendant consents to jurisdiction over him or her by making
a general appearance in the action.” (In re Vanessa Q. (2010) 187
Cal. App. 4th 128, 135.) “A general appearance by a party is
equivalent to personal service of summons on such party.” (Code
Civ. Proc., § 410.50, subd. (a).) “‘A general appearance operates
as a consent to jurisdiction of the person, dispensing with the
requirement of service of process, and curing defects in service.’”
(Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114
Cal. App. 4th 1135, 1145; accord, In re Jennifer O. ( 2010) 184
Cal. App. 4th 539, 548 [a “general appearance by a party is
equivalent to personal service of summons on such party”]; Titus
v. Superior Court (1972) 23 Cal. App. 3d 792, 800-801 (Titus) [a
general appearance “operates as a consent to jurisdiction”].)
23
“A general appearance occurs when the defendant takes
part in the action or in some manner recognizes the authority of
the court to proceed. [Citations.] If the defendant confines its
participation in the action to objecting to lack of jurisdiction over
the person, there is no general appearance.” (Dial 800 v.
Fesbinder (2004) 118 Cal. App. 4th 32, 52 (Dial 800); accord,
Hamilton v. Asbestos Corp. (2000) 22 Cal. 4th 1127, 1147).) “A
party whose participation in an action is limited to challenging
the court’s personal jurisdiction does not make a general
appearance. Other forms of participation, however, such as
seeking affirmative relief or opposing a motion on the merits,
ordinarily constitute a general appearance.” (Serrano v. Stefan
Merli Plastering Co., Inc. (2008) 162 Cal. App. 4th 1014, 1028);
accord, Titus, supra, 23 Cal.App.3d at pp. 800-801 [an
appearance solely to contest jurisdiction is a special appearance,
through which defendant “does not thereby consent to
jurisdiction over his person”].)
“A California defendant can preserve objections to personal
jurisdiction only by making a special appearance, i.e., an
appearance for the sole purpose of objecting to the court’s
jurisdiction.” (In re Marriage of Obrecht (2016) 245 Cal. App. 4th
1, 8.) However, a party who “‘raises any other question, or asks
for any relief which can only be granted upon the hypothesis that
the court has jurisdiction of his person.” (Cal. Overseas Bank v.
French Am. Banking Corp. (1984) 154 Cal. App. 3d 179, 184) will
be deemed to have “made a general appearance and waived all
objections to defects in service, process, or personal jurisdiction.”
(Dial 800, supra, 118 Cal.App.4th at p. 52 [filing an attorney’s
fees request constituted a general appearance, waiving
appellants’ jurisdictional challenges]; City of Riverside v.
24
Horspool (2014) 223 Cal. App. 4th 670, 679-680 [request for
continuance constituted general appearance]; accord, Mansour v.
Superior Court (1995) 38 Cal. App. 4th 1750, 1756-1757
[defendants’ active participation in preparation of joint case
management statement and in an evaluation conference
constituted general appearance]; Estate of Pailhe (1952) 114
Cal. App. 2d 658, 661 [attorney’s appearance and participation in a
hearing on the merits constituted party’s general appearance;
“the attorney’s act in appearing for [party] carried with it a
presumption of due authority upon his part to do so”].)
“‘“Whether an appearance is general or special is
determined by the character of the relief sought and not by the
intention of the party that it shall or shall not operate as a
general or special appearance. The statement of a defendant or
party that he is making a special appearance is not necessarily
conclusive. . . .”’” (Slaybaugh v. Superior Court (1977) 70
Cal. App. 3d 216, 221-222.)
b. Corcoran forfeited all objections based on lack of
personal jurisdiction and improper service by
making a general appearance
Corcoran’s appearance at the June 14, 2018 hearing may
have constituted a general appearance because Corcoran’s
counsel did not state Corcoran was objecting to service of the
petition or the court’s jurisdiction.14 (See City of Riverside v.
14 At the June 14, 2018 hearing Corcoran’s counsel stated:
“Good morning, Your Honor. Valerie Marek here on behalf of
respondents, the Corcoran Gallery of Art and the Board of
Trustees for the Corcoran Gallery of Art. . . . Respondents don’t
object to that timeline as we, too, would prefer to file a written
objection. . . . Yes, we would like to file our written objections by
25
Horspool, supra, 223 Cal.App.4th at p. 679 [“[a] general
appearance occurs when a defendant takes part in the action or
in some manner recognizes the authority of the court to proceed”];
In re Vanessa Q., supra, 187 Cal.App.4th at p. 135 [counsel’s
request for continuance constituted general appearance];
Mansour v. Superior Court, supra, 38 Cal.App.4th at p. 1757
[“[a]n attorney’s appearance for a party at a hearing can also
result in a general appearance”].)
However, there is no question that Corcoran generally
appeared by filing its motion for reconsideration because the
motion was not limited to challenging jurisdictional or service
issues.15 In addition to challenging service and personal
jurisdiction, Corcoran’s motion for reconsideration requested that
the probate court “modify, amend, or revoke” its July 30, 2018
order because: (1) Petty failed to timely serve comments to the
court’s probate notes; (2) the District of Columbia order restricted
the Pascal collection’s removal from the District of Columbia; (3)
the Tyler trust may no longer exist and discovery was required;
and (4) Corcoran possessed “other good defenses to the
allegations of the Petition” and requested a “fair opportunity to
present those defenses.” Julyan’s declaration submitted evidence
supporting Corcoran’s merits-related requests for relief.
that time.” Corcoran’s counsel also inquired, “And did Your
Honor have any preferences to the date with which we should file
our objections by?”
15 On April 28, 2020, in response to this court’s order, the
parties submitted further briefing regarding: “did [Corcoran]
generally appear in the action through their August 13, 2020
Motion for Reconsideration of the Court’s July 30, 2018 Order?”
26
Corcoran challenged the substance underlying the July 30,
2018 order and the merits of the petition. For example,
questioning the existence of the Tyler trust, Corcoran sought
“discovery relating to tax filings, meetings since 1994, and other
documents . . . .” Corcoran also urged the probate court to “deny”
Petty’s petition because Corcoran cannot “remove the [Pascal
collection] from the District . . . without running afoul [the
District of Columbia order].” As discussed, Corcoran also
contended the probate court issued the July 30, 2018 order in
violation of the court’s local rules because “[c]ounsel for [Petty]
failed timely to serve on [Corcoran] his comments to the [probate
court’s] identified probate notes.”
By affirmatively seeking relief, introducing supporting
evidence, and arguing the merits, Corcoran participated in this
action and recognized the probate court’s jurisdiction. Corcoran
sought “relief available only if the court has jurisdiction over [it].”
(Factor Health Management v. Superior Court (2005) 132
Cal. App. 4th 246, 250.) Corcoran therefore submitted to the
probate court’s jurisdiction and generally appeared. (Serrano v.
Stefan Merli Plastering Co., Inc., supra, 162 Cal.App.4th at
p. 1029 [“seeking affirmative relief or opposing a motion on the
merits, ordinarily constitute a general appearance . . . and
became subject to the court’s personal jurisdiction”]; People v.
Ciancio (2003) 109 Cal. App. 4th 175, 192 [“DMH filed a response
to the OSC in which it argued the merits of the motions,
challenged the relief sought by the alleged SVP’s, and expressly
requested that the motions be denied on their merits”]; Kallman
v. Henderson (1965) 234 Cal. App. 2d 91, 99 [“[t]he general
appearance was made by Mr. Henderson when he filed the
present motion, based not only on his contention that there had
27
been no personal appearance by him but also on the subject
matter of the complaint and the existence of alleged fraud”].)
Given its general appearance, Corcoran “relinquish[ed] all
objections based on lack of personal jurisdiction or defective
process or service of process.” (In re Marriage of Obrecht, supra,
245 Cal.App.4th at p. 7.) Further, because Corcoran failed to
make a motion to quash before it generally appeared, “none of the
issues relating to notice or due process were preserved for review
by a timely motion to quash prior to making a general
appearance.” (City of Riverside v Horspool, supra, 223
Cal.App.4th at pp. 680-681 [“William’s failure to make a proper
challenge to jurisdiction in the trial court (as by a motion to
quash service prior to any general appearance) forfeits any such
challenge on appeal”].)16
16 Corcoran did not argue in the trial court and it does not
argue in its briefing that a general appearance operated as
consent to jurisdiction only for subsequent proceedings. Corcoran
therefore doubly forfeited this argument. (See Children’s
Hospital and Medical Center v. Bonta (2002) 97 Cal. App. 4th 740,
776 [party “‘doubly waived’” an argument by failing to make the
argument in the trial court and also failing to raise the argument
in its briefing on appeal]; Sweetwater Union High School Dist. v.
Julian Union Elementary School Dist. (2019) 36 Cal. App. 5th 970,
987 [arguments not raised in opening brief are forfeited]; Quiles
v. Parent, supra, 28 Cal.App.5th at p. 1013 [“[f]ailure to raise
specific challenges in the trial court forfeits the claim on
appeal”].) At oral argument Corcoran asserted, based on In re
Marriage of Smith (1982) 135 Cal. App. 3d 543, that the effect of
any general appearance would operate only prospectively.
However, In re Marriage of Smith is distinguishable because it
concerned a “general appearance after judgment was entered.”
(Id. at p. 545.) (See In re Marriage of Obrecht, supra, 245
28
Citing Josephson v. Superior Court of Los Angeles County
(1963) 219 Cal. App. 2d 354 (Josephson) and Varra v. Superior
Court of Humboldt County (1960) 181 Cal. App. 2d 12 (Varra),
Corcoran argues that the motion for reconsideration, following its
counsel’s “specific appearance” at the June 14, 2018 hearing “for
the sole purpose of opposing Petty’s ineffective service,” was not a
general appearance. Corcoran contends its motion merely
renewed the “ineffective service” objections made at the June 14,
2018 hearing. However, as stated, Corcoran’s counsel did not
object to service at the June 14 hearing, and Corcoran’s motion
for reconsideration went beyond jurisdictional issues by seeking
to vacate the July 30, 2018 order on grounds other than
jurisdiction. Moreover, neither Josephson nor Varra supports
Corcoran. The courts in these cases affirmed the settled principle
that a motion for reconsideration following, and restricted to, the
same limited jurisdictional grounds as a motion to quash, did not
confer jurisdiction by converting a movant’s prior special
appearance into a general one. In doing so, the courts pointed
out that where, as here, if the party moving for reconsideration
asks for any relief other than lack of jurisdiction, the party will
be deemed to have made a general appearance. (Josephson, at
p. 361; Varra, at p. 14.)
Cal.App.4th at p. 11 [holding that In re Marriage of Smith was
“inapposite” for “at least two reasons: the claim here is not
defective service, but want of a constitutional basis of
jurisdiction, and [the defendant’s] general appearance was not
made after judgment, but much earlier in the action, at a time
when [defendant] could have moved to quash, but instead
appeared on the merits”].)
29
In Josephson petitioner filed a timely notice of motion to
quash service of summons for lack of jurisdiction. (Josephson,
supra, 219 Cal.App.2d at p. 356.) When the trial court denied
petitioner’s motion, petitioner moved for reconsideration of the
motion to quash on the same limited grounds; that the court
lacked personal jurisdiction over petitioner, and petitioner sought
“‘only to quash service of summons upon him.’ He sought no
other or further relief.” (Id. at p. 362.) Likewise, in Varra,
rejecting “the contention that petitioner’s motion to reconsider
the denial of her motion to quash constituted a general
appearance, the court held that “[p]etitioner sought in her first
motion to have service of summons quashed for lack of
jurisdiction of her person and in her second motion [for
reconsideration] sought the same relief and nothing more.”
(Varra, supra, 181 Cal.App.2d at p. 14.)
2. The Probate Court Did Not Abuse Its Discretion by
Granting the Petition Despite Petty Filing Its
Supplement One Day Late
Corcoran’s defective motion for reconsideration also argued
that Petty served its response to the court’s probate notes one day
late in violation of the court’s local rules. That argument, even if
properly raised, was also meritless.
On the afternoon of July 25 the probate court posted
updated notes in connection with the July 30 hearing.17 Los
Angeles Superior Court Local Rule 4.4, subdivision (b), required
17 Los Angeles Superior Court Local Rule 4.4, subdivision (a),
provides that probate notes “are available in advance of a
hearing” on the court’s website. The record does not disclose
when the probate court first posted notes for this hearing, or if
the updated notes were the only notes posted for this hearing.
30
Petty’s counsel to “clear” the probate notes “no later than 3:30
p.m. of the second court day preceding the hearing date.” Given
the July 30 (Monday) hearing date, Petty’s deadline was 3:30
p.m. on July 26, 2018 (Thursday). Petty filed her response to the
notes on July 27, 2018 (Friday) at 4:12 p.m., one day late. Petty’s
counsel emailed the “supplement” to Corcoran’s counsel at 5:07
p.m. the same day.18
Corcoran argues Los Angeles Superior Court Local Rule
4.4, subdivision (c), required the probate court, given Petty’s one
day delay in filing its response, to “continue the hearing, place
the matter off calendar, deny the matter without prejudice, or
take other action it deems necessary.” According to Corcoran,
although there was no opposition to the petition and it did not
attend the hearing, the probate court could not grant the petition;
rather, the court’s discretion was restricted to corrective actions
similar to those expressed in subdivision (c).
In Adam v. Sharp (1964) 61 Cal. 2d 775, 777, the California
Supreme Court, in holding a probate court properly disregarded a
local rule, stated, “Rules of court are but a means to accomplish
the ends of justice, and it is always in the power of the court to
suspend its own rules, or to except a particular case from their
operation, whenever the purposes of justice require.” Thus, “[i]n
absence of any showing to the contrary, it will be presumed that
the court disregarded its rules for sufficient cause and to
subserve the ends of justice, as it had the power to do.” (Johnson
v. Sun Realty Co. (1934) 138 Cal. App. 296, 299; see also Los
Angeles Superior Court Local Rule, subd. 4.2 [“[t]he court for
18 Corcoran’s counsel stated that she “accessed” the probate
notes on July 27, 2018.
31
good cause may waive the application of the Probate Division
Rules in an individual case”].)
Here, with Corcoran absent and no objections, the probate
court had the discretion to grant the petition, despite Petty’s one-
day delay in filing her response to the notes. The updated
probate notes largely concerned service issues. On July 26
Corcoran raised service objections in a letter to Petty’s counsel.
However, Corcoran chose not to assert those objections in the
probate court through a motion to quash or otherwise. Because it
had decided not to participate in the July 30 hearing, Corcoran
could not have been prejudiced because there was nothing it
would have done differently if Petty timely served its response.
Further, the court updated the probate notes on July 25, leaving
Petty with one day to timely respond. Petty filed a 64-page
response on July 27. Under these circumstances, the probate
court was well within its discretion to hear the petition on its
merits. See In re Marriage of Rosevear (1998) 65 Cal. App. 4th
673, 682 [“Generally, where a trial court has discretionary power
to decide an issue, an appellate court is not authorized to
substitute its judgment of the proper decision for that of the trial
judge. The trial court’s exercise of discretion will not be
disturbed on appeal in the absence of a clear showing of abuse,
resulting in injury sufficiently grave as to amount to a manifest
miscarriage of justice. . . . The burden is on the complaining
party to establish abuse of discretion”].)
3. The Probate Court’s Order Does Not Conflict with the
District of Columbia Order
Corcoran’s defective motion for reconsideration also argued
that the District of Columbia order revised the Pascal agreement,
restricting its ability to remove the Pascal collection from the
32
District of Columbia. Referring to the Full Faith and Credit
Clause of the United States Constitution,19 Corcoran makes the
argument again on appeal. That argument, even if properly
raised, was also meritless.
Corcoran argues that, because the transfer agreement with
National Gallery applied to “art works owned or controlled by the
Corcoran,” it therefore applied to the Pascal collection. According
to Corcoran, “[i]t follows” that the Pascal agreement was “an
‘other applicable instrument’” subject to revision to the extent
necessary under the District of Columbia order.20 Because the
side letter supplemented the transfer agreement by adding
geographic distribution restrictions for art works, Corcoran
maintains that the District of Columbia order “revised the Pascal
Agreement to the extent necessary to incorporate” the side letter.
The side letter required the Attorney General’s permission or a
19 “Under the full faith and credit clause of the United States
Constitution a valid judgment of a sister state must be
enforced by the courts of every other state.” (Paul v. Miller
(1943) 61 Cal. App. 2d 73, 77; Code Civ. Proc., § 1913, subd. (a)
[“the effect of a judicial record of a sister state is the same in this
state as in the state where it was made”].) California recognizes
a District of Columbia judgment as a sister state judgment.
(Richard A. Viguerire Co. v. Noble (1980) 101 Cal. App. 3d 62, 64.)
20 The District of Columbia order provides, “The actions
necessary by [Corcoran] to perform and implement the
[agreements with National Gallery and George Washington
University], according to their terms, are hereby approved and
the Corcoran Deed of Trust and any other applicable instrument
is deemed revised to the extent necessary to permit [Corcoran] to
perform and implement the [agreements with National Gallery
and George Washington University] according to their terms.”
33
further cy pres order before Corcoran can distribute art works
outside of the District of Columbia. Corcoran concludes, the “full
faith and credit clause obligates California to enforce” the District
of Columbia order. Petty, on the other hand, argues that the full
faith and credit clause is not implicated because the Pascal
collection was not subject to the District of Columbia order.
Because there was no conflict between the District of
Columbia order and the probate court’s judgment, we do not
reach Corcoran’s argument under the full faith and credit clause.
Corcoran’s argument is premised on classifying the Pascal
agreement as an “other applicable instrument” under the District
of Columbia order. As an “other applicable agreement,” according
to Corcoran, the Pascal agreement was deemed revised to allow
Corcoran to consummate the transaction with the National
Gallery. Both premises are faulty.
After considering Mr. Corcoran’s original intent when
establishing Corcoran, the District of Columbia court under the
cy pres doctrine “deemed revised” the 1869 deed of trust to allow
consummation of the National Gallery and George Washington
University transactions. Because District of Columbia court
found “it [was] impracticable to carry out the existing Deed of
Trust” and its order “effectively dissolve[d] the Corcoran as an
independent entity,” instruments, such as Corcoran’s original
deed of trust, required revision. These instruments had governed
the manner in which Corcoran operated as an independent
nonprofit entity. Transferring Corcoran’s assets to other
institutions conflicted with Mr. Corcoran’s intent expressed in the
deed of trust. Similarly, “any other applicable instrument”
necessary to have permitted implementation and performance of
the National Gallery and George Washington University
34
transactions was also deemed revised. Missing from Corcoran’s
argument is why “it follows” that the Pascal agreement was in
this category of “any other applicable instrument,” akin to
Corcoran’s 1869 deed of trust. Corcoran does not explain why it
was “necessary” for implementation and performance of its
agreements with the National Gallery to have deemed the Pascal
agreement revised to “incorporate” the side letter’s geographic
distribution provisions. It was not.
To be sure, Corcoran, the National Gallery, and George
Washington University performed and implemented their
agreements without the need to incorporate new terms into the
Pascal agreement. In other words, without implicating the
Pascal agreement, George Washington University assumed
ownership and operation of Corcoran’s building and Corcoran
College, and Corcoran transferred the art works to the National
Gallery for accession or distribution. Without the Tyler trust
before it, the District of Columbia court did not render any
adjudications regarding the Pascal agreement. Moreover, during
the 20 years it performed the Pascal agreement, Corcoran did not
accession the Pascal collection, and the National Gallery declined
to accession the Pascal collection. Accordingly, the National
Gallery is holding the Pascal collection “for the benefit of
Corcoran” awaiting distribution.
Far from incorporating terms to diminish third parties’
rights, the transfer agreement contemplated maintaining “then-
existing liabilities, commitments and obligations” for art works to
be distributed. The District of Columbia order also provided that
the National Gallery “shall adhere to the restrictions as
otherwise applicable to the [art works], as those restrictions have
been understood and implemented previously by [Corcoran].”
35
Moreover, the court in its decision stated that “‘any existing
donor restrictions that are applicable to the particular assets’ will
remain in place. . . .” Consistent with these provisions, after
execution of the transfer agreement and the side letter, Corcoran
offered to return the Pascal collection to Petty in California.
Corcoran has not shown that the District of Columbia order
impacted the Pascal agreement or its ability to comply with the
probate court’s order by returning the Pascal collection to
California.21
21 Corcoran has not contested the enforceability of the
conditions subsequent in the Pascal agreement requiring, in the
event of breach, the return of the Pascal collection and the $1
million gift. Nor has Corcoran denied it breached the Pascal
agreement, entitling the Tyler trust to terminate the Pascal
agreement. Corcoran only argues that it cannot comply with the
probate court’s judgment because it requires permission to
remove the Pascal collection from the District of Columbia. But,
under the side letter, on which Corcoran relies so heavily, it could
have designated in the first instance a “non-DC institution [as]
the most suitable candidate” for non-accessioned art works such
as the Pascal collection. Thus, Corcoran could have designated
the Pascal collection for return to Petty in California and sought
the Attorney General’s permission to transfer the collection.
36
DISPOSITION
The judgment is affirmed. Petty shall recover her costs on
appeal.
DILLON, J.*
We concur:
SEGAL, Acting P. J.
FEUER, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
37