Los Angeles News

LOS ANGELES (CBS) ― Anna Nicole Smith's 1-year-old daughter should be the sole heir to her estate, the late reality star's former personal attorney asserted in court papers filed Thursday.

Howard K. Stern is the executor of Smith's estate, and the petition seeks to clarify Smith's intentions in her July 2001 will, drafted five years before Dannielynn Hope's birth in September 2006.

The baby, who is in the custody of her father, photographer Larry Birkhead, could inherit millions of dollars from the estate of Smith's second husband, billionaire J. Howard Marshall, who left much of his fortune to Smith in his will, although his family has contested the will.

Smith died in Hollywood, Fla., on Feb. 8 of an accidental overdose of prescription drugs at age 39. The onetime Playboy Playmate's daughter celebrated her first birthday on Sept. 7.

When the will was drafted, Smith had one child, Daniel, who died three days after Dannielynn's birth. The will states that "although she did not expect to have any children in the future, if she did, she wanted them to share equally in the trust created for Daniel ..."

Smith did not update her will during the five months between Daniel's death, Dannielynn's birth and Smith's death on Feb. 8, the petition states.

"As a matter of law, Dannielynn is a pretermitted heir," the petition states.

A pretermitted heir is someone who likely stands to inherit under a will, but was not named in the document because the maker did not know of the person when it was written.

Meanwhile, a Los Angeles judge Thursday left intact a preliminary injunction preventing a Texas doctor and his wife from disseminating a 1994 videotape documenting a breast augmentation surgery on the late Anna Nicole Smith.

Superior Court Judge Mitchell L. Beckloff denied a motion by Gus Pappas, an attorney for Dr. Gerald Wayne Johnson, to find that Los Angeles courts do not have jurisdiction over the physician, who lives with his wife in Houston, Texas.

Stern's attorney, Bruce S. Ross, maintains that although the case is in California and the Johnsons are in Texas, the Los Angeles Superior Court still has jurisdiction because the physician allegedly tried to disseminate the tape in Los Angeles County.

Beckloff rejected Pappas' motion on grounds Pappas was neither licensed to practice in California, nor had he hired a California-licensed attorney to bring the motion.

Beckloff left open the door for the motion to be brought back later if Pappas asks to make a special appearance to practice in California for the one motion, or hires somebody licensed to do so on Johnson's behalf.

Pappas said he has tried without success to find a California attorney to handle the motion.

The orders prevent the Johnsons from "selling, distributing or otherwise disseminating" the tape. They also must give the original tape, as well as any copies that may have been made, to Stern.

Johnson performed the surgery in 1994. Stern maintains that Smith never consented to the taping or to allowing the footage to be seen by Thomas Riccio, a Los Angeles-based memorabilia dealer.

On Aug. 24, Beckloff extended a temporary restraining order against Alana Johnson, saying he was reluctant to also issue a prelifinary injunction against her at that time because she had not yet been served with any notice of the case.

However, Beckloff said he was persuaded during another hearing Sept. 14 that lawyers for Stern had made a reasonable attempt to serve her with notice of the preliminary injunction hearing, but that she deliberately avoided receiving a summons.

Stern's lawyers submitted a statement by a process server that he almost got into a high-speed chase while trying to give the woman the papers before he finally gave up for safety reasons.

The lawyers also told Beckloff they mailed a notice to Alana Johnson with a return receipt, but that also proved unsuccessful.

Stern was not present in court Thursday.

(© 2007 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)