Opinion
F072656
10-31-2016
MARLEEN MERCHANT, Plaintiff and Respondent, v. LILLIAN D. PELLEGRINI, as Trustee, etc. Defendant and Appellant.
Lillian D. Pellegrini, in pro. per., for Defendant and Appellant. Weintrab Tobin, Kelly E. Dankbar and Brendan Begley for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10CEPR00683)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Donald S. Black, Judge. Lillian D. Pellegrini, in pro. per., for Defendant and Appellant. Weintrab Tobin, Kelly E. Dankbar and Brendan Begley for Plaintiff and Respondent.
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In the probate proceedings below, the trial court found after a trial on reserved issues that Lillian Dorothy Pellegrini (Lillian), as former trustee of the Angelo John Pellegrini and Lillian Dorothy Pellegrini Revocable Living Trust of June 18, 1999 (the Trust), had repeatedly refused to comply with the Trust provisions requiring the funding of a subtrust designated as the Family Trust, even when ordered to do so by the trial court. The trial court found that Lillian acted in bad faith and wrongfully took assets belonging to the Family Trust. Consequently, the trial court granted the relief sought by plaintiff Marleen Merchant (Marleen), one of the residuary beneficiaries of the Family Trust, by awarding double damages under Probate Code section 859, which sums had to be paid by Lillian to the successor trustee of the Family Trust. In the same order, the trial court also directed Lillian to pay the attorney fees incurred by Marleen. Lillian appeals from the above order, as well as from subsequent postjudgment enforcement orders. Because Lillian's appeal has failed to establish any reversible error or abuse of discretion in regard to the above orders of the trial court, we will affirm.
Unless otherwise indicated, all further statutory references are to the Probate Code.
FACTS AND PROCEDURAL HISTORY
The Trust Provisions
Angelo John Pellegrini (Angelo) and Lillian, as husband and wife, executed the Trust on June 18, 1999, which appears to be a fairly standard revocable living trust. The Trust states that Angelo and Lillian (also referred to as the trustors) have two children—namely, their daughters Beverly Jean Pellegrini (Beverly) and Marleen—who would receive the remainder of the Trust estate in equal shares after Angelo and Lillian died. Angelo and Lillian, during their joint lifetimes, were the co-trustees of the Trust.
The Trust provides that on the death of the first spouse, the surviving spouse would continue to act as trustee. However, at that time, the Trust assets were supposed to be divided into separate trusts. As the Trust clearly states: "On the death of the Deceased Spouse, the Trustee shall divide the Trust Estate ... into three separate trusts, designated as the 'Survivor's Trust', the 'Marital Trust', and the 'Family Trust'." Here, Angelo died on March 27, 2008, at which time Lillian became the sole trustee and, according to the above language, was obliged to divide the Trust estate into separate trusts as provided in the Trust.
As defined by the Trust, the share of the trust estate to be allocated to the Survivor's Trust consisted of "the Surviving Spouse's interest in the Trustors' community property and the Surviving Spouse's separate property, if any, ...." The income of the Survivor's Trust was to be paid by the trustee in frequent installments to the surviving spouse during his or her lifetime. Further, the trustee was entitled to "pay to or apply for the benefit of the Surviving Spouse so much of the principal, up to the whole thereof, as the Trustee deems appropriate for the surviving spouse's health, general welfare and support in accordance with his/her accustomed standard of living." Upon the death of the surviving spouse, the principal of the Survivor's Trust "shall be added to the Family Trust and distributed in the same fashion as provided for hereinafter [regarding the Family Trust]."
The share of the trust estate to be allocated to the Marital Trust (also referred to in the Trust as a Q-Tip Trust) consisted of "the minimum dollar amount necessary for a marital deduction to eliminate (or reduce to the extent possible) any federal estate tax at the death of the Deceased Spouse." However, the Trust further provided that "assets qualifying for the federal estate tax marital deduction shall be transferred to the Marital Trust only to the extent that such transfer would effect a reduction in the federal estate tax otherwise payable by the Deceased Spouse's estate." Upon the death of the surviving spouse, the principal of the Marital Trust "shall be distributed ... [o]ne share for each of the Trustors' then living children" (i.e., Marleen and Beverly) or, if deceased, to their issue by right of representation.
In light of this provision, it appears the Marital Trust need not be funded if doing so would not effect a reduction in federal estate tax otherwise payable by the deceased spouse's estate. Notably, the Family Trust did not have a such a provision, but was to be funded from the balance of the Trust estate after any allocations were made to the Survivor's Trust and Marital Trust.
Finally, the Trust specifies that the Family Trust "shall consist of the balance of the Trust Estate representing the balance of the Deceased Spouse's interest in the Trustors' community property and the balance of the Deceased Spouse's separate property included in the Trust Estate but after the allocation of such property to the Marital Trust." Here, as already noted, Angelo was the deceased spouse; Lillian was the surviving spouse and sole trustee. Following the terms of the above Trust provision, it appears that the allocation of assets that should have been made by Lillian to the Family Trust consisted of Angelo's share of the community property and his separate property, less any portion of such property actually allocated to the Marital Trust. As will be seen, that is precisely what the trial court concluded.
The position taken by Lillian in the trial court was that she did not have to fund either the Marital Trust or the Family Trust.
With regard to administering the Family Trust, the Trust states that "[t]he Trustee shall distribute the income and so much of the principal [of the Family Trust] as the Trustee deems appropriate in the event of accident, illness or like emergency to the Surviving Spouse or to maintain the Surviving Spouse in his or her accustomed standard of living or for extended care." Upon the death of the surviving spouse, the entire principal and any accrued interest in the Family Trust "shall be distributed ... [o]ne share for each of Trustors' then living children" (i.e., Marleen and Beverly) or, if deceased, to their issue by right of representation.
On the subject of amendment or revocation, the Trust provides that during their joint lifetimes, Angelo and Lillian were free to revoke or amend the trust. However, "[o]n the death of the Deceased Spouse, the Surviving Spouse shall have the power to amend, revoke or terminate the Survivor's Trust, but the Marital Trust or the Family Trust may not be amended, revoked or terminated on the death of the Deceased Spouse."
In their first amendment to the Trust, executed in 2004 (the 2004 amendment), Angelo and Lillian amended the provision of the Trust relating to the distribution of the Family Trust upon the death of the surviving spouse. The 2004 amendment primarily focused on one item of trust property—the trustors' residence in San Francisco—and provided Beverly with a right to a life estate therein that could be used or relinquished by her, after which an equal division between the trustors' two daughters would be carried out. Other provisions of the Trust remained unchanged. The 2004 amendment stated in part as follows:
The San Francisco real property was sold by Lillian in 2009.
"c. Distribution of Family Trust on Surviving Spouse's Death. Upon the death of the Surviving Spouse, our daughter, BEVERLY J. PELLEGRINI ('BEVERLY') shall be granted an estate for her lifetime to occupy the real property commonly known and designated as 2554 - 33rd Avenue, San Francisco, California ('the real property') including the contents therein, rent free, or until such time as she voluntarily terminates her possession of said premises for a continuous period of one year. [¶] Upon BEVERLY's death or her voluntary termination of her right to possession by vacating the property for a continuous period of one year, her life estate shall cease and the property shall be sold and the trustees shall divide the proceeds equally among our daughters BEVERLY and MARLEEN J. MERCHANT ('MARLEEN')."
Proceedings After Death of Angelo
Following Angelo's death on March 27, 2008, Lillian became the sole trustee of the Trust or, more specifically, of the separate subtrusts into which the Trust estate was then supposed to be divided. She was removed as trustee of the Family Trust in 2015. As should be apparent, the parties' dispute centers on Lillian's actions while trustee and, in particular, her failure and refusal to fund the Family Trust.
Although the record before us is somewhat sketchy, it appears that the relevant proceedings in the trial court arose out of two petitions filed in the trial court by Marleen. First, on July 3, 2012, Marleen filed a petition to remove Lillian as trustee, appoint a successor trustee and obtain other relief (the petition to remove trustee). Second, on January 13, 2014, Marleen filed a petition for the recovery of property belonging to the Family Trust, for an award of double damages under section 859 and for an award of attorney fees (the petition to recover property). Both petitions were verified by Marleen, and numerous exhibits were referenced in the allegations or attached as exhibits. Because the two petitions set the stage for the subsequent trials of particular issues and the resulting orders that have been appealed by Lillian, we briefly describe the nature of the allegations set forth in those pleadings.
The Petition to Remove Trustee
Marleen's petition to remove trustee contained, in substance, the following allegations: Following Angelo's death, Lillian refused to provide information concerning the trust assets. Consequently, in 2010, Marleen successfully applied to the trial court for an order compelling Lillian to provide an accounting of the assets as of the time of Angelo's death and also to provide information on how the assets were allocated between the Survivor's Trust, the Marital Trust and the Family Trust. On December 3, 2010, while represented by counsel (attorney Robert Sullivan), Lillian filed a "STATEMENT OF TRUST ASSETS AS OF MARCH 27, 2008," (the 2010 Statement of Trust Assets) signed by her under penalty of perjury. Included with the 2010 Statement of Trust Assets was a summary of a purported allocation of trust assets to the Family Trust. Among the assets set forth in the purported allocation to the Family Trust was one-half of the $800,000 value of the San Francisco residence as of March 27, 2008, or $400,000. The total value of assets that Lillian (through her attorney) represented to have been allocated to the Family Trust was $544,386.91.
Although at this point we are summarizing allegations in the petition, for ease of expression we do not insert the word "allegedly" into each sentence.
The allocation summary stated that assets were allocated to the Survivor's Trust and the Family Trust, but not the Marital Trust. Attorney Sullivan's cover letter, dated December 7, 2010, to Marleen's attorney explained that no assets were allocated to the Marital Trust due to the Trust's formula relating to estate taxes.
The San Francisco real property was listed in the 2010 Statement of Trust Assets as "Community Property," valued as of the time of Angelo's death at $800,000. It also noted that the San Francisco real property was sold by Lillian in 2009.
However, in 2011, the above representations regarding the Family Trust were directly contradicted or repudiated by Lillian, who by that time was no longer represented by counsel. Specifically, in response to a subsequent request by Marleen's attorney for further information and accounting concerning the Family Trust, Lillian replied by letter of September 27, 2011, that no Family Trust exists, there are no assets in the Family Trust, and no assets were ever allocated or distributed to a Family Trust.
Based on the above allegations, the petition to remove trustee alleged that Lillian had breached the trust by either (1) failing to fund the Family Trust or (2) even if it had been funded (despite Lillian's most recent statements), by making contradictory and bad faith representations to the beneficiaries, which displayed her unfitness to serve. The petition sought Lillian's removal as trustee, the appointment of a successor trustee, further accounting of the Trust assets, redress of any breaches of trust, and other relief.
The Petition to Recover Property
Marleen's petition to recover property was based on essentially the same factual allegations as the petition for removal of trustee, but included several new allegations. The new allegations were largely based on a revised accounting filed by Lillian in 2013. In that 2013 accounting, Lillian (1) confirmed that no Family Trust was ever created or funded following Angelo's death, (2) claimed that the San Francisco real property was entirely Lillian's separate property upon Angelo's death, and (3) admitted that she held assets that were formerly in the Trust estate in her own name individually, and outside of the trust. Marleen's petition to recover property further alleged: "[B]y purposefully and continuously refusing over the last five years to follow the provisions of the Trust agreement that require her to create a Family Trust, Lillian has in bad faith wrongfully taken, concealed and disposed of property belonging to the Family Trust." Accordingly, said petition asserted that Lillian was liable for twice the value of the property that belonged to the Family Trust, and for attorney fees and costs pursuant to section 859.
Lillian's argument that the real property became her separate property upon Angelo's death was based on the original form of title (i.e., joint tenancy) that had existed before the real property was transferred by the trustors to the trust.
In addition to reporting that the Family Trust and Marital Trust were not funded, the 2013 accounting stated that the Survivor's Trust was no longer in existence, Lillian having exercised her power to revoke or terminate that subtrust.
Section 859 states, in relevant part, as follows: "If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to ... a trust, ... the person shall be liable for twice the value of the property recovered by an action under this part. In addition, ... the person may, in the court's discretion, be liable for reasonable attorney's fees and costs. The remedies provided in this section shall be in addition to any other remedies available in law to a person authorized to bring an action pursuant to this part."
Bifurcation of Issues Ordered
On June 17, 2014, the trial court granted Marleen's motion to bifurcate issues. Under the bifurcation order, a trial on "the issues of (a) whether the Family Trust was required to be funded after [Angelo's] death and ... (b) whether the title to the San Francisco real property maintained its joint tenancy characterization after being transferred to [the Trust]," was to proceed first. After the trial of the above two issues was completed, the remaining issues would be set for separate trial. Among other things, the remaining issues included: whether Lillian should be removed as trustee as a result of the breaches of trust alleged by Marleen; whether Lillian as trustee breached the Trust and, if so, whether she should be surcharged (in an amount to be determined); whether Lillian as trustee should be surcharged for the attorney fees and costs incurred by Marleen in this matter; whether Lillian as an individual is required to return assets or property to the Family Trust; and whether Lillian, in bad faith, wrongfully took, concealed or disposed of property belonging to the Trust and is, therefore, liable for twice the value of the property recovered as well as Marleen's attorney fees and costs.
The First Issues Tried and Decided
On January 14, 2015, a trial was conducted to determine the issues of whether the Family Trust was required to be funded after Angelo's death and whether the title to the San Francisco real property maintained its joint tenancy characterization after being transferred to the Trust. After considering the evidence presented and the parties' arguments, the trial court issued its findings and order after trial on January 20, 2015 (the January 2015 Order). The trial court found, by clear and convincing evidence, that "the Family Trust was required to be funded following the death of Angelo ... on March 27, 2008," and that the amount it should have been funded with at that time was "a minimum of $544,386.91." The trial court also found, by clear and convincing evidence, that "the title to the San Francisco real property did not maintain its joint tenancy characterization after being transferred to the Trust." All other matters were reserved and would be determined by a subsequent trial or hearing. The reserved matters were expressly listed as including "surcharge of Lillian ..., as Trustee, removal of Lillian ... as Trustee, Lillian['s] ... liability for double damages under ... section 859, and Lillian['s] ... liability for [Marleen's] attorneys' fees and costs under ... section 859 ...."
On January 28, 2015, Marleen served notice of entry of the January 2015 Order, but Lillian never filed an appeal from that order. Thus, the trial court's determination of these foundational issues became final. Despite the trial court's determination that the Family Trust had to be funded in the minimum amount of $544,386.91, Lillian continued to fail or refuse to do so.
Lillian Removed as Trustee of the Family Trust
On May 11, 2015, the trial court held a hearing on the issue of whether Lillian should be removed as trustee of the Family Trust. In its order filed on May 15, 2015, the trial court (1) ordered the removal Lillian as trustee of the Family Trust "for failing to fund the Family Trust after the death of Angelo" and (2) appointed the Fresno County Public Guardian as the successor trustee of the Family Trust (the May 2015 Order). Furthermore, the May 2015 Order unequivocally stated that "Lillian ... is directed to fund the Family Trust in the amount of $544,386.91, and shall pay said amount to the Fresno County Public Guardian as the Successor Trustee of the Family Trust ...." As to the remaining issues, the May 2015 Order advised the parties that "[t]he Petition to Recover Property Belonging to Trust, For Award of Double Damages, and For Recovery of Attorneys' Fees and Costs, filed by [Marleen] on January 13, 2014, is set for a one-day court trial on August 25, 2015, ...."
On May 21, 2015, Marleen served a notice of entry of the May 2015 Order. Lillian did not file an appeal from that order, nor did Lillian comply with the clear directive therein to fund the Family Trust in the amount of $544,386.91.
Subsequent Trial of Remaining Issues
On August 25, 2015, the trial court proceeded with the trial on the remaining issues. The trial court reviewed the court file, heard the testimony of witnesses, considered the other evidence presented at trial, and heard the arguments of counsel and of Lillian. In its findings and order after trial, issued on September 4, 2015 (the Damages Order), the trial court made the following findings:
"1. ... Lillian ... is in default with respect to the Petition to Recover Property Belonging to Trust, For Award of Double Damages, And For Recovery of Attorneys' Fees and Costs, as she does not have a written response on file to that petition.
"2. Further, based on the evidence of
"(a) [Lillian's] repeated misrepresentations regarding the funding of the Family Trust;
"(b) [Lillian's] deliberate refusal to fund the Family Trust, even in the face of court orders to do so;
"(c) [Lillian's] repeated delay of the proceedings through the filing of frivolous motions and proceedings; and,
"(d) [Lillian's] outright refusal to comply with the terms of [the Trust],
"the Court finds that ... Lillian ... in bad faith wrongfully took assets belonging to the Family Trust, and double damages are awarded pursuant to ... section 859.
"3. The evidence is uncontradicted that ... Lillian ... repeatedly breached the standard of care with respect to her duties as trustee, including, among other things, by failing to fund the Family Trust, even after being ordered to do so. The Court finds that this conduct justifies an award of attorneys' fees and costs in favor of ... Marleen ... as a surcharge against ... Lillian ...."
Based on the above findings, the trial court ordered that Lillian "shall pay double damages in the amount of $544,386.91 to the Fresno County Public Guardian as the Successor Trustee of the Family Trust ... pursuant to ... section 859." The Damages Order explained that "[t]his amount is in addition to the $544,386.91 that [Lillian] was already ordered to pay to the Fresno County Public Guardian as the Successor Trustee of the Family Trust" pursuant to the May 2015 Order. (Italics added.) Additionally, the trial court ordered that Lillian "is surcharged for the attorneys' fees and costs that ... Marleen ... has incurred in this matter in the amount of $439,497.62."
Marleen served a notice of entry of the Damages Order on September 25, 2015. On October 28, 2015, Lillian filed a notice of appeal from the Damages Order, identified in the notice of appeal as a judgment "dated September 4, 2015." Her notice of appeal also referenced two subsequent postjudgment orders entered by the trial court in October 2015, which we describe below.
Postjudgment Enforcement Orders
In mid-October 2015, when still no action had been taken by Lillian to comply with the trial court's orders, the successor trustee (i.e., the Fresno County Public Guardian) filed an ex parte application seeking to enforce the judgment embodied in the Damages Order against a financial account held by Lillian. The application stated that relief was being sought on an ex parte basis because of Lillian's continuing statements that she would not fund the Family Trust, which created a reasonable likelihood that Lillian would attempt to move or conceal assets if a noticed motion were brought. The application further alleged that enforcement of the judgment would not create a financial hardship on Lillian because, other than the attorney fees recovery to Marleen, the recovered funds would be placed into the Family Trust, and Lillian continued to be the beneficiary of the Family Trust during her lifetime.
Since the Damages Order had incorporated the prior determination that Lillian must fund the Family Trust in the amount of $544,386.91, for simplicity we treat the enforcement request as simply pertaining to the Damages Order.
On October 20, 2015, the trial court granted the ex parte relief sought by the successor trustee, including to freeze accounts of Lillian's at a particular financial institution (UBS Financial Services) until the further order of the trial court, and to require UBS Financial Services to transfer the sum of $1,528,271.44 to the successor trustee in full satisfaction of the September 4, 2015, Damages Order entered against Lillian.
Apparently, not all of the assets in the UBS Financial Services account were in the form of cash. Because there was insufficient cash in the UBS Financial Services account to satisfy the entire judgment, it was necessary to liquidate some noncash assets in the UBS Financial accounts. A follow-up order dated November 16, 2015, further authorized the successor trustee to direct UBS Financial Services as to which noncash assets to liquidate. The November 16, 2015, order came after Lillian's notice of appeal, and she did not file a subsequent notice of appeal from the November 16, 2015, order.
As noted, Lillian's notice of appeal is from the Damages Order dated September 4, 2015, and from the postjudgment enforcement orders entered on October 20, 2015.
DISCUSSION
I. Burden on Appeal
Preliminarily, we point out Lillian's burden as appellant. A judgment or order of a trial court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Because a trial court's judgment or order is presumed to be correct, reversible error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, an appellant must affirmatively show prejudicial error based on adequate legal argument and citation to the record. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523.) These requirements apply equally to an appellant who is acting without an attorney. (McComber v. Wells, supra, at p. 523.)
In light of the burden on appeal, when points are perfunctorily raised, without adequate analysis and authority or without citation to an adequate record, we may pass over them and treat them as abandoned. (People v. Stanley (1995) 10 Cal.4th 764, 793; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700; Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856.) In fact, a failure to provide an adequate record on an issue requires that the issue be resolved against the appellant. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) As stated in Nielsen v. Gibson (2009) 178 Cal.App.4th 318 at page 324: "[A]n appellant must not only present an analysis of the facts and legal authority on each point made, but must also support arguments with appropriate citations to the material facts in the record. If he fails to do so, the argument is forfeited." (Accord, In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1310, fn. 3.)
In the present case, glaring deficiencies in the record indicate that, for the most part, Lillian has failed to meet her burden on appeal. For example, Lillian's opening brief is replete with factual assertions, but she only sporadically cites to anything in the minimal record she provided. More than that, although Lillian provided an appendix containing selected documents, she intentionally declined to furnish any reporter's transcripts of the relevant proceedings in the trial court. Thus, to the extent her appeal involves challenges to the factual findings and/or to the sufficiency of the evidence in the trial and hearings below, the lack of a reporter's transcript renders the record materially incomplete to address those issues. "'"[I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed."'" (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 [citing examples where failure to provide reporter's transcript was fatal to assertion of error premised on insufficiency of evidence].) As helpfully explained by one Court of Appeal: "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence." (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
Lillian provided an appendix containing some exhibits, but she did not provide a clerk's transcript or a reporter's transcript.
Cases coming before an appellate court in such a posture are generally treated as an appeal "'"on the judgment roll"'" (Kucker v. Kucker (2011) 192 Cal.App.4th 90, 93), in which "'review is limited to determining whether any error "appears on the face of the record." [Citations.]'" (Ibid.; see Nielsen v. Gibson, supra, 178 Cal.App.4th at pp. 324-325; Cal. Rules of Court, rule 8.163.)
Additionally, where an appellant challenges the sufficiency of the evidence to support a judgment or order, he or she should discuss all of the material evidence, including that which is unfavorable to the appellant's claim: "When a party challenges on appeal the sufficiency of evidence, the party must discuss all the evidence supporting the court's ruling or the party waives the point." (Gombiner v. Swartz (2008) 167 Cal.App.4th 1365, 1374.) When we compare the evidence referred to in the trial court's orders (e.g., the Damages Order and the January 2015 Order) to the minimal citations to the evidentiary record in Lillian's brief herein, it is apparent that Lillian has chosen to ignore significant portions of the evidence in her discussion.
Compounding the problem of an incomplete record is the fact that most of Lillian's opening brief concerns appealable orders from which she failed to file a timely appeal. Remarkably, even though she ostensibly appeals from the Damages Order, almost nothing in her brief addresses that order. We discuss below the implications of Lillian's misdirected attempt to obtain review of nonreviewable matters (due to her failure to timely appeal from those appealable orders).
Despite the above shortfalls on Lillian's part, in an abundance of caution we shall nonetheless briefly consider Lillian's main arguments, but we do so acknowledging at the outset that affirmance would appear to be supportable based on the deficiencies in the record alone.
II. Impact of Failure to Timely Appeal from Appealable Orders
In her statement of appealability, set forth in her opening brief, Lillian asserts without any discussion that the January 2015 Order was "interlocutory and not subject to appeal." Lillian is mistaken on that point. As noted previously herein, the January 2015 Order set forth the trial court's determination that "the Family Trust was required to be funded following the death of Angelo ... on March 27, 2008" in the amount of $544,386.91. The January 2015 Order also set forth the trial court's determination that "the title to the San Francisco real property did not maintain its joint tenancy characterization after being transferred to the Trust."
An appeal lies from any order made appealable by the Probate Code. (Code Civ. Proc., § 904.1, subd. (a)(10).) Section 1304, subdivision (a), makes appealable any final order under a section 17200 petition by a trustee or beneficiary concerning the internal affairs of a trust. (§ 1304, subd. (a) [final orders under § 17200 appealable, with two exceptions not applicable here]; Esslinger v. Cummins (2006) 144 Cal.App.4th 517, 523 ["An order determining the existence of a power, duty, or right under a trust is appealable."]; see § 17200, subds. (a) & (b) [a trustee or beneficiary may petition the trial court to determine any of a broad range of issues relating to the internal affairs of a trust].) Here, the January 2015 Order was clearly an appealable order under section 1304, subdivision (a), since the trial court made final determinations about the internal affairs of the Trust under section 17200. Likewise, the May 2015 Order was appealable under section 1304, subdivision (a), since it also constituted a final order entered under section 17200. (See § 17200, subd. (b)(10).)
It was also appealable under section 1300, subdivision (a), which provides that orders confirming rights in a real property conveyance or transfer are appealable.
When an appealable order or judgment is entered by the trial court, an aggrieved party has 60 days from notice of entry of said order or judgment in which to file an appeal. (Cal. Rules of Court, rule 8.104(a)(1).) The time period is jurisdictional; once the deadline expires, the appellate court has no power to entertain an appeal as to that judgment or order. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) Lillian did not file a timely appeal (or any appeal) from the January 2015 Order or the May 2015 Order. As a consequence, Lillian's right to challenge those orders or the matters resolved therein was forfeited and she cannot seek to review them in connection with her present appeal from a subsequent judgment or order. California law is unequivocal on this point: If an appealable order is not timely appealed, the right to appellate review of that order or to challenge its particulars is "forfeited" and "forever lost." (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8; see In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1215-1216 [party who failed to timely appeal an appealable order "cannot be heard to complain" about that order].) Moreover, an appellate court may not review a decision or order from which an appeal could previously have been taken, but was not. (In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339, 1347; In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 119; Code Civ. Proc., § 906.) "'"The law of this state does not allow, on an appeal from a judgment, a review of any decision or order from which an appeal might previously have been taken."'" (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239; see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 89, p. 152 [same].)
Here, despite her failure to appeal from the January 2015 Order, most of Lillian's appeal challenges the correctness of the trial court's resolution of the issues in that order. Among other things, Lillian's appeal argues that (1) the Trust was wholly revocable by Lillian after Angelo's death and that she did not have to fund the Family Trust and (2) the San Francisco real property, after being transferred into the Trust, retained its joint tenancy status and became her separate property upon Angelo's death. However, those issues were resolved against Lillian in the January 2015 Order and, therefore, cannot be raised by Lillian in the present appeal. Additionally, Lillian argues on various grounds that the January 2015 Order was erroneous or invalid. She makes a similar argument regarding the May 2015 Order. Again, those orders were not timely appealed by her and are not subject to Lillian's belated collateral attack in an appeal from a subsequent order.
Because the January 2015 Order and the May 2015 Order are not subject to ordinary appellate review for the reasons noted above, Lillian's arguments against the orders' validity would normally be disregarded or dismissed by this court. No timely appeal of an order means no appellate review. However, in our discussion below, we briefly address Lillian's arguments to the extent that she has portrayed the alleged errors as jurisdictional.
III. Lillian's Jurisdictional Arguments Fail
In an apparent effort to get around the problem of failing to timely appeal from the prior orders, Lillian characterizes her arguments challenging the validity of those orders as jurisdictional in nature. That is, she claims the trial court exceeded its power or jurisdiction to act. On that basis, Lillian is apparently asking that we treat the portion of her appeal challenging the January 2015 Order and the May 2015 Order as essentially a petition for a writ of prohibition, concerning which she adds "there is no time limit." We decline to do so for reasons that will be explained in our discussion below.
Lillian's opening brief is entitled "Appellant's Opening Brief" and "Writ of Prohibition." (Capitalization omitted.) The caption page of Lillian's appellant's appendix states that a motion for a writ of prohibition "remains pending." (Capitalization omitted.) We previously denied Lillian's motion for a writ of supersedeas and/or for a writ of prohibition relating to the postjudgment enforcement orders. (See order filed Jan. 19, 2016.) To the extent there remained a further or broader request for writ of prohibition, we now make clear that we are denying same. Lillian's request for a default in regard to her prohibition request is likewise denied.
Preliminarily, we briefly describe what is meant by jurisdictional error in this context. "[J]urisidictional errors can be of two types. A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable." (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.) Lillian's contentions are solely of the latter type—i.e., an alleged excess of jurisdiction. Prohibition is used to challenge jurisdictional errors of both types; i.e., the writ may arrest or restrain proceedings that are either without or in excess of the jurisdiction of the tribunal. (8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 52, p. 929; Code Civ. Proc., § 1102; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288-291.) Most procedural or statutory errors are not jurisdictional. Nevertheless, an error under a statutory provision may be considered to be in excess of jurisdiction, but "'"only where the clear purpose of the statute is to restrict or limit the power of the court to act and where the effective enforcement of such restrictions requires the use of extraordinary writs of certiorari or prohibition."'" (In re Marriage of Goddard, supra, at p. 57, italics added.)
For a number of reasons, we reject Lillian's apparent request to treat her appeal as a request for writ of prohibition. The first is Lillian's delay. "'As a general rule, a writ petition should be filed within the 60-day period that is applicable to appeals. [Citations.] "An appellate court may consider a petition for an extraordinary writ at any time [citation], but has discretion to deny a petition filed after the 60-day period applicable to appeals, and should do so absent 'extraordinary circumstances' justifying the delay."' [Citation.]" (Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 310.) Here, no justification for the delay is apparent and none is presented by Lillian. The second reason we decline to treat Lillian's attack on the prior orders as a petition for writ of prohibition is that Lillian had available to her the usual remedy of appealing from those orders, but she simply failed to pursue that remedy. (See, e.g., 8 Witkin, Cal. Procedure, supra, Extraordinary Writs, § 58, p. 936.) No explanation is offered for failure to avail herself of the presumptively adequate remedy of filing a timely appeal from the prior appealable orders. The third reason we reject Lillian's request to treat her appeal as a petition for writ of prohibition is that she has failed to identify or demonstrate any jurisdictional error. We discuss this latter point more fully below.
Additionally, prohibition is generally not available to remedy completed judicial acts or proceedings that are not continuing, since nothing remains to be restrained (8 Witkin, Cal. Procedure, supra, Extraordinary Writs, §§ 50-51, pp. 927-928), which would appear to be the case here.
A. Revocability Argument
Lillian makes two main arguments in her attempt to show that the trial court was without power or jurisdiction to issue the January 2015 Order. The first argument relies on Lillian's assumption that the Trust was entirely revocable by her at all times, even after Angelo's death. Based on that premise, Lillian argues that Marleen lacked standing to seek any relief under section 17200 and the trial court was without power to grant Marleen's petition. In support of that contention, Lillian notes that section 17200, subdivision (a), states: "Except as provided in Section 15800 , a trustee or beneficiary of a trust may petition the court under this chapter concerning the internal affairs of the trust ...." (Italics added.) Further, section 15800 provides: "Except to the extent that the trust instrument otherwise provides ..., during the time that a trust is revocable and the person holding the power to revoke the trust is competent: [¶] (a) The person holding the power to revoke, and not the beneficiary, has the rights afforded beneficiaries under this division. [¶] (b) The duties of the trustee are owed to the person holding the power to revoke." (See Estate of Giraldin (2012) 55 Cal.4th 1058, 1065-1066 [if a trust was fully revocable by the settlor during his lifetime, the contingent beneficiaries' interest was merely potential and could be divested during the settlor's lifetime, during which time the contingent beneficiaries would be powerless to act regarding the trust].)
Whatever we may think of Lillian's argument in the abstract, it fails in this case because it is based on a false foundational premise—namely, that the entire Trust was revocable by Lillian after Angelo's death. Contrary to that assumption, the Trust clearly provided that after the death of the first spouse, the Trust assets were to be divided into the separate subtrusts and only the Survivor's Trust would remain revocable. Specifically, the Trust stated that "[o]n the death of the Deceased Spouse, the Surviving Spouse shall have the power to amend, revoke or terminate the Survivor's Trust, but the Marital Trust or the Family Trust may not be amended, revoked or terminated on the death of the Deceased Spouse." For this reason, Lillian's argument is without merit, since it erroneously assumes that a right of total and complete revocability existed following Angelo's death.
The presumption of revocability set forth in section 15400 is not applicable to the extent the trust is expressly made irrevocable, which was the case here after Angelo died.
Lillian advances substantially the same revocability argument concerning the May 2015 Order removing Lillian as trustee of the Family Trust and appointing the Fresno County Public Guardian as successor trustee. For the same reasons as discussed above, her argument fails with respect to that order as well. No jurisdictional error is shown. We note that Lillian also argues the trial court abused its discretion because there were inadequate grounds to remove a trustee, but that is plainly not a jurisdictional argument. Moreover, grounds for removal plainly existed based on Lillian's refusal to comply with provisions of the Trust even after being ordered to do so by the trial court. (See § 15642, subds. (a), (b)(1), (b)(4) & (b)(9).)
B. Statute of Limitations Argument
Lillian's second argument offered in support of her claim of jurisdictional error regarding the January 2015 Order is simply that one or more statute of limitations had lapsed. Lillian's argument cannot succeed because an ordinary statute of limitations (as here) does not create a jurisdictional bar; it merely provides a special defense that may be waived. (See, e.g., Bliss v. Sneath (1898) 119 Cal. 526, 528 [statute of limitations defense may be waived]; Redlands etc. Sch. Dist. v. Superior Court (1942) 20 Cal.2d 348, 360 [award of damages to the plaintiff despite his failure to file timely tort claim against district was not jurisdictional error].) Moreover, there is nothing in the terms of the particular statutes in question (i.e., §§ 16061.7, 16460) to indicate that a clear purpose of either section was to restrict the power of the court to act, or to require it to exercise its jurisdiction in a particular manner. (See In re Marriage of Goddard, supra, 33 Cal.4th at p. 57 [describing the type of statutory provision necessary to support claim of excess of jurisdiction]; Abelleira v. District Court of Appeal, supra, 17 Cal.2d at p. 288 [same].) Lillian has failed to explain how violation of the statutes in question could possibly constitute jurisdictional error, and none is apparent.
It is possible she is making this argument as to the May 2015 Order as well. If so, our analysis and the outcome would be the same.
Section 16061.7, together with section 16061.8, simply provides for a 120-day limitations period for filing a contest to the validity of a trust, commencing when the notice required by section 16061.7 has been sent. Similarly, section 16460 provides a three-year limitations period for a beneficiary to sue the trustee for breach of trust, after the expiration of which all such claims are time-barred. The three-year period runs from the date the beneficiary has received an interim or final accounting in writing or a similar report that adequately discloses the existence of a claim against the trustee for breach of trust, or in the absence of such an accounting, within three years after the beneficiary discovered, or reasonably should have discovered, the subject of the claim. (§ 16460, subd. (a)(1) & (2).) These appear to be ordinary statute of limitations, not provisions that restrict the power of the court to act.
We conclude that the purported errors based on the above statutes of limitation, if any such errors occurred, were of a nonjurisdictional nature and cannot support a writ of prohibition. (See, e.g., 2 Witkin, Cal. Procedure (5th ed., 2008) Jurisdiction, § 287, p. 894 [errors in matters of pleading, evidence, procedure, or substantive law are normally nonjurisdictional errors and not grounds for attack by writ of prohibition]; Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950 [noting that a failure to state a cause of action, insufficiency of evidence, abuse of discretion, and mistake of law, have been held to be nonjurisdictional errors for which collateral attack will not lie]; Abelleira v. District Court of Appeal, supra, 17 Cal.2d at p. 287 [mere errors of law or fact insufficient to support prohibition because "[i]f the lower court has power to make a correct determination of a particular issue, it clearly has power to make an incorrect decision, subject only to appellate review and not to restraint by prohibition."].)
Lillian has also failed to show that she raised the issue in the trial court, which is a further reason for denial of prohibition. (See 8 Witkin, Cal. Procedure, supra, Extraordinary Writs, §§ 140-141, pp. 1037-1038.)
In any event, even assuming for the sake of argument that a failure to comply with the statute of limitations could conceivably be considered a jurisdictional bar, Lillian has failed to show that any error occurred. Below, we briefly discuss Lillian's assertion that the time limits of sections 16061.7 and 16460 were violated.
Service of the notification required under section 16061.7 creates a 120-day limitations period for a beneficiary or an heir to bring "an action to contest the trust." (§ 16061.7, subd. (h); cf. § 16061.8.) We fail to see how either of Marleen's petitions filed in the trial court could reasonably be considered a contest of the Trust. In no sense was the validity or applicability of the Trust or its provisions challenged or attacked. To the contrary, Marleen sought to carry out the terms of the Trust where the trustee was refusing to do so, and also sought remedies related thereto. For this reason, Lillian's attempt to assert the deadline under section 16061.7 (also § 16061.8) is misplaced, and she offers no argument or explanation to the contrary.
Despite this, Lillian appears to argue that section 16061.7's deadline was nonetheless violated because of something she claims was revealed in connection with the statutory notification given to Marleen under section 16061.7. That notification was sent to Marleen pursuant to section 16061.7 by Lillian's then attorney, Mark Drobny, along with the attorney's cover letter dated May 13, 2008, and the waiver form (together the notification papers).
Lillian focuses on the waiver form, but we note that all three of these documents have similar content.
Before proceeding to examine Lillian's contention more closely, for the sake of context we briefly explain what a section 16061.7 notification is. Section 16061.7, subdivision (a)(1), provides in part that a trustee shall serve a notification pursuant to that section "When a revocable trust or any portion thereof becomes irrevocable because of the death of one or more of the settlors ...." The notification must include the following information: (1) the identity of the settlor or settlors of the trust and the date of execution of the trust instrument; (2) the name, mailing address and telephone number of each trustee of the trust; (3) the address of the physical location where the principal place of administration of the trust is located; (4) any additional information that may be required by the terms of the trust instrument; and (5) a notification that the recipient is entitled, upon reasonable request to the trustee, to receive from the trustee a true and correct copy of the terms of the trust. (§ 16061.7, subd. (g).) In addition, the notification in this case had to include a conspicuous warning that the recipient may not bring an action to contest the trust more than 120 days from the date of the notification. (§ 16061.7, subd. (h).)
On May 13, 2008, Attorney Drobney sent the required notification to Marleen. His accompanying cover letter summarized the statutory notification and also explained the reason for the attached waiver form: "In order to assist the Trustee in expediting the trust administration process, we request that you sign the enclosed Waiver, which waives your right to object to the trust within the statutory 120-day period. [¶] By signing the enclosed Waiver, it will allow the Trustee to more quickly administer the trust." The core provision of the waiver form stated that Marleen, by signing, was waiving "[her] statutory, common law, and/or other right to bring an action contesting [the Trust]."
Marleen signed the waiver form under penalty of perjury.
In the notification papers sent by Attorney Drobney, it was briefly recited that the notification was being sent pursuant to section 16061.7 since "a portion of [the Trust] became irrevocable upon the death of ANGELO ... on March 27, 2008." The part of the Trust identified as irrevocable at that time was "The Angelo J. Pellegrini Marital Trust." Lillian seizes on the fact that no other irrevocable portion of the Trust was mentioned, arguing that the notification papers, as a matter of law, gave Marleen actual or constructive knowledge in May 2008 that the Family Trust would never be funded by Lillian and would not be treated as irrevocable by her. We disagree. No such definite information about the Family Trust may reasonably be gleaned from the notification papers. Nothing in the notification papers denies that the Family Trust will be funded, and no apparent representation about the revocability of the Family Trust is made. On the other hand, the notification does plainly affirm: "Upon the death of the first Trustor, the Trust estate is to be divided into three separate trusts, designated as the 'Survivor's Trust', the 'Marital Trust', and the 'Family Trust'," and goes on to state that the Family Trust "shall consist of the balance of the Trust Estate representing the balance of the Deceased Spouse's interest in the Trustors' community property and the balance of the Deceased Spouse's separate property included in the Trust Estate but after the allocation of such property to the Marital Trust." Thus, if anything, the overall effect of the notification papers would have been to confirm that the Family Trust was going to be created and funded. Consistent with that assessment, Lillian subsequently submitted the 2010 Statement of Trust Assets (through her then attorney, Robert Sullivan), specifically representing that the amount of assets allocated to the Family Trust was $544,386.91.
This was in the notification and repeated in the cover letter and waiver form.
In summary, section 16061.7 (also § 16061.8) was not violated in this case. Although the 120-day period was triggered by the service of the section 16061.7 notification, it applied only to actions to contest the trust, which was not the case here. Lillian's attempt to somehow make the section applicable by means of her argument that the notification papers revealed her true intentions is unpersuasive. In any event, nothing in the notification papers served on Marleen would have put Marleen on notice of Lillian's wrongdoing. In short, Lillian has failed to show a violation of section 16061.7.
Section 16460 provides a three-year statute of limitations for actions by a beneficiary against the trustee for breach of trust. The three-year period runs from the receipt of an interim or final account or other written report that adequately discloses the existence of a claim against the trustee for breach of trust. (§ 16460, subd. (a)(1).) If an interim or final account or other written report does not adequately disclose the existence of a claim against the trustee for breach of trust, or if a beneficiary does not receive any written account or report, then the three-year period runs from the time the beneficiary discovered, or reasonably should have discovered, the subject of the claim. (§ 16460, subd. (a)(2).)
Here, Marleen's petition to remove trustee, filed by her on July 3, 2012, was the pleading that commenced her claims for breach of trust.
As noted above, Lillian's 2010 Statement of Trust Assets specifically represented that the amount of assets allocated to the Family Trust was $544,386.91. Obviously, nothing in the 2010 Statement of Trust Assets disclosed that anything was remiss, since it represented Lillian's division of Trust assets and the funding of the Family Trust. The only other financial accounting or report provided by Lillian was on February 19, 2013, where Lillian's revised accounting disclosed that she did not allocate funds to the Family Trust after all. In Lillian's letter of September 27, 2011, she wrote to Marleen's attorney and made representations that there is no Family Trust and no assets were allocated to the Family Trust. Since the September 27, 2011, letter does not appear to be an accounting or report, the three-year period arguably was triggered when Marleen received the February 19, 2013, revised accounting. In any event, even if the three-year period was triggered by the September 27, 2011, letter, Marleen's pleading was well within the statutory period.
In conclusion, there is no merit to Lillian's contention that a statute of limitations deprived the trial court of jurisdiction or power to make the rulings that it did in the proceedings before it. The purported statute of limitations violations, if any such violations occurred, did not constitute jurisdictional error. In any event, Lillian failed to demonstrate that any statute of limitations violation actually did occur. Moreover, the judgments or orders of the trial court are presumed correct, and Lillian has failed to provide an adequate record of all of the potentially relevant evidence bearing on this issue. As a result, the failure to provide an adequate record provides a further ground for our rejection of Lillian's contention.
For all of the reasons discussed above, Lillian has failed to show that any jurisdictional error was committed by the trial court in the subject proceedings.
III. Lillian Cannot Attack the Funding Order
As we have explained above, Lillian's attempt to characterize the nature of the purported errors as jurisdictional as a means to possibly gain review of the subject orders by a writ of prohibition was unavailing. Consequently, because Lillian failed to file a timely appeal from the January 2015 Order (requiring that the Family Trust be funded) or the May 2015 Order (reiterating that requirement and directing Lillian to comply with it), she is not entitled to challenge them in the present appeal. She nevertheless attempts to do so, making a variety of further arguments that assert ordinary error in regard to the trial court's determinations, which arguments amount to claims of insufficient evidence to support the trial court's findings or of mistaken application of law to the facts. We summarily reject such claims of error. As a matter of law, Lillian's right to make such claims was lost by her failure to timely appeal from the subject orders (In re Baycol Cases I & II, supra, 51 Cal.4th at p. 761, fn. 8; In re Marriage of Padilla, supra, 38 Cal.App.4th at pp. 1215-1216), and we will not review or disturb the trial court's orders or rulings from which an appeal could previously have been taken, but was not (In re Marriage of Rifkin & Carty, supra, 234 Cal.App.4th at p. 1347; In re Marriage of Weiss, supra, 42 Cal.App.4th at p. 119; Code Civ. Proc., § 906).
Even if were to give brief consideration to Lillian's claims, we would have no difficulty rejecting them. The clear terms of the Trust, or a reasonable interpretation thereof, were sufficient to support the trial court's conclusion that the Family Trust must be funded. Additionally, case law adequately supported the trial court's determination that the San Francisco real property was no longer in joint tenancy once it was transferred by the trustors into the Trust (see Estate of Powell (2000) 83 Cal.App.4th 1434, 1441-1442). Moreover, Lillian has failed to provide a reporter's transcript to demonstrate any purported lack of substantial evidence regarding the contested rulings of the trial court. Thus, the above attacks also fail because of a lack of an adequate factual record. A failure to provide an adequate record on an issue requires that the issue be resolved against the appellant. (Hernandez v. California Hospital Medical Center, supra, 78 Cal.App.4th at p. 502.) As we recited previously: "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence." (Estate of Fain, supra, 75 Cal.App.4th at p. 992.)
Although we completely reject Lillian's attacks on the trial court's orders requiring the funding of the Family Trust, we briefly comment on one of her arguments. Lillian asserts that the Family Trust became invalid as a result of the 2004 amendment because that amendment, by focusing primarily on the San Francisco real property, allegedly left out an explicit beneficiary designation for the personal property in the Family Trust upon the death of the surviving spouse. The trial court implicitly rejected Lillian's claim of invalidity because it's order requiring that the Family Trust be funded necessarily included the court's conclusion that the Family Trust was valid. Moreover, Lillian fails to explain why the issue she raises would not simply be one of trust construction, not of invalidity. As to the issue of trust construction, Lillian has failed to furnish an adequate record on appeal (i.e., no reporter's transcript). Such a record may well have included extrinsic evidence helping to resolve any potential ambiguity in regard to the effect of the 2004 amendment. In any event, Lillian has not established the invalidity of the Family Trust. In addition to the issue being unsupported by an adequate record and unreviewable for failure to timely appeal from the subject appealable order, it is forfeited for the additional reason that Lillian has presented it in a perfunctory manner without adequate citation to California authority or legal discussion. (Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at pp. 556-557; People v. Stanley, supra, 10 Cal.4th at p. 793; Landry v. Berryessa Union School Dist., supra, 39 Cal.App.4th at pp. 699-700.)
On the use of extrinsic evidence in construing a trust instrument, see Ike v. Doolittle (1998) 61 Cal.App.4th 51, 73-74.
In summary, we reject all of Lillian's efforts to challenge the orders requiring the funding of the Family Trust, since she failed to appeal from such orders.
IV. No Reversible Error Shown in Regard to Postjudgment Enforcement Orders
The remainder of Lillian's appeal appears to be directed at the October 2015 postjudgment enforcement orders (the enforcement orders). Since Lillian did file an appeal from these orders, her right to seek appellate review is not forfeited at the outset as was the case with the prior appealable orders.
A. Notice and/or Due Process Arguments
The trial court granted the enforcement orders on an ex parte basis, and not at a noticed hearing. Consequently, Lillian claims that she did not receive due process. We begin our discussion of this claim by highlighting some of the procedural background that preceded the orders in question.
As the record in this case reveals, the trial court on three separate occasions had issued final orders or judgments requiring Lillian to fund the Family Trust, including the January 2015 Order, the May 2015 Order, and lastly the Damages Order issued on September 4, 2015. Nothing in the record suggests that Lillian ever made any attempt to voluntarily comply with the trial court's orders to fund the Family Trust.
In mid-October 2015, when still no action had been taken by Lillian to obey the trial court's orders, the successor trustee of the Family Trust (i.e., the Fresno County Public Guardian) filed an ex parte application seeking to enforce the judgment embodied in the Damages Order against an account held by Lillian at a financial institution known as UBS Financial Services. The application sought two alternative forms of relief: (1) an order freezing the account held by Lillian at UBS Financial Services and/or (2) an order directing UBS Financial Services to pay the successor trustee the sum of $1,528,271.44 in full satisfaction of the Damages Order against Lillian. It was further indicated in the application that the freezing of the account would be to preserve the status quo pending the issuance of the writ of execution and levy on the accounts.
The application explained that the relief was being sought on an ex parte basis because of Lillian's continuing statements that she would never fund the Family Trust, which created a reasonable likelihood that Lillian would attempt to move or conceal assets if a noticed motion were brought. As summarized by the successor trustee in its moving papers filed in the trial court: "To date, Lillian has failed and refused, and continues to fail and refuse, to fund the Family Trust. Lillian has a long established pattern of refusal to obey court orders, and based on her history of bad faith wrongful taking of trust property (as found by Judge Black at the August 25, 2015 trial), Lillian will continue to secrete and hide her assets rendering the judgment uncollectible or otherwise resulting in a multiplicity of suits." The application further asserted that enforcement of the judgment would not create financial hardship to Lillian because, other than the attorney fees recovery to Marleen, the entirety of the recovered funds would be placed into the Family Trust, and Lillian remained the beneficiary of the Family Trust during her lifetime. The application also informed the trial court that if, as requested, UBS Financial Services was ordered to transfer sufficient funds from the accounts held or possessed by Lillian to the successor trustee to satisfy the Damages Order, approximately $1 million in other funds or assets would still remain in Lillian's account at UBS Financial Services.
The legal basis argued by the successor trustee for the enforcement orders was the broad authority granted to the trial court under sections 850 to 859, under which authority Marleen's petition to recover property had been tried and the Damages Order entered. We briefly summarize these sections. Section 850 allows (among other things) a petition to be filed by an interested person for the recovery of property belonging to a trust or trustee, where such property is in the possession of another. (§ 850, subd. (a)(3)(A), (B) & (C).) Section 856 provides, in relevant part, that "if the court is satisfied that a conveyance, transfer, or other order should be made, the court shall make an order authorizing and directing the ... person having title to or possession of the property, to execute a conveyance or transfer to the person entitled thereto, or granting other appropriate relief." In accordance with section 856, the trial court ordered in the Damages Order, as well as in the May 2015 Order, that Lillian "shall pay" to the successor trustee the amounts set forth therein, including in the Damages Order an award of double damages under section 859. Section 857 declares the legal effect of such orders made in connection with proceedings under sections 850 to 859: "(a) The order is prima facie evidence of the correctness of the proceedings and of the authority of the personal representative or other fiduciary or other person to make the conveyance or transfer. [¶] (b) After entry of an order that the personal representative, other fiduciary, or other person execute a conveyance or transfer, the person entitled thereunder has the right to the possession of the property, and the right to hold the property, according to the terms of the order as if the property had been conveyed or transferred in accordance with the terms of the order." (See Estate of Kraus (2010) 184 Cal.App.4th 103, 110-118 [describing broad statutory and equitable powers of the trial court under sections 850-859 to recover and collect assets belonging to a trust or decedent's estate and to fashion appropriate relief to accomplish same, including to recover improperly obtained funds from a wrongdoer's account].)
The May 2015 Order was also, in part, granted pursuant to the petition to recover property (i.e., under §§ 850-859).
On October 20, 2015, the trial court granted the ex parte relief sought by the successor trustee, including the issuance of orders (1) freezing certain accounts of Lillian's at UBS Financial Services until the further order of the trial court and (2) requiring UBS Financial Services to transfer the sum of $1,528,271.44 (from certain accounts held by Lillian) to the successor trustee in satisfaction of the September 4, 2015, Damages Order that was entered against Lillian. On November 18, 2015, at Lillian's request, we issued a temporary stay of the trial court's enforcement orders to allow briefing from the parties regarding Lillian's "REQUEST FOR A WRIT OF SUPERSEDEAS OR IN THE ALTERNATIVE WRIT OF PROHIBITION ...." After considering the parties' arguments, we denied Lillian's request for writ of supersedeas and/or prohibition, and we lifted the temporary stay. Lillian then petitioned for review to the California Supreme Court and applied for a further stay. On February 17, 2016, the Supreme Court denied both requests.
Apparently, not all of the assets in the UBS Financial Services account were in the form of cash. Because there was insufficient cash in the UBS Financial Services account to satisfy the entire judgment, it was necessary to liquidate some noncash assets in the UBS Financial accounts. A follow-up order dated November 16, 2015, further authorized the successor trustee to direct UBS Financial as to which noncash assets to liquidate. The November 16, 2015, order came after Lillian's notice of appeal, and she did not file a subsequent notice of appeal from the November 16, 2015, order.
In the instant appeal, Lillian argues that because the enforcement orders entailed the taking or transfer of property, she was entitled to a noticed hearing, rather than such relief being granted by the trial court on an ex parte basis. Since Lillian has failed to provide a sufficient record, we are not adequately apprised of the exact nature or extent of any alleged deficiency of notice or opportunity to be heard. (Foust v. San Jose Construction Co., Inc., supra, 198 Cal.App.4th at p. 187 ["'"[I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed."'"].) Further, Lillian's appeal fails to address the issue of whether her ongoing defiance of the trial court's direct orders to fund the Family Trust, and the risk implied therefrom that she would seek to hide or conceal assets to prevent enforcement of the Damages Order may have provided justification for the trial court to proceed on an ex parte basis in this particular instance. Where exceptional circumstances are present, ex parte relief may be granted on extremely short notice (see, e.g., Cal. Rules of Court, rules 3.1200-3.1204; 6 Witkin, Cal. Procedure (5th ed., 2008) Proceedings Without Trial, §§ 58-59, pp. 483-485), and the Rules of Court relating to ex parte motions even include a provision to inform the trial court "[t]hat, for reasons specified, the applicant should not be required to inform the opposing party." (Cal. Rules of Court, rule 3.1204(b)(3).) Based on the foregoing, we conclude that Lillian has failed to adequately show error. But even if there was error, Lillian has failed to demonstrate that it was of a reversible or prejudicial nature. (Code Civ. Proc., § 475.) Lillian was personally liable for the amounts due under the Damages Order, and she has failed to show that if events had proceeded on a regularly noticed motion, the outcome could have turned out differently.
Contrary to Lillian's suggestion, the ex parte grant of the enforcement orders in this case did not represent a failure by a probate court to adhere to a jurisdictional notice provision in a statute relating to a special proceeding, as was the case in Olcese v. Superior Court (1930) 210 Cal. 566 and Texas Co. v. Bank of America etc. Assn. (1935) 5 Cal.2d 35. Here, the relevant notice provision for purposes of section 850 et seq. proceedings was section 851, which provides that, at least 30 days in advance of the trial of the issues set forth in the petition, a notice of hearing along with a copy of the petition must be served on all interested parties. Lillian has not argued, and nothing in the record reflects, that this notice provision was not complied with here. Even on the meager record before us, there is no question that Lillian was present at, and participated in, the trial on the merits to determine the property recovery issues under section 850, et seq. It is evident that Lillian received notice of the section 850 et seq. petition and of the trial proceedings, she had her day in court, and she lost—resulting in the Damages Order that was thereafter enforced by the subject enforcement orders.
B. Failure to Join Indispensable Party
Lillian argues that all of the proceedings in the trial court below (including the orders from which she appealed) must be set aside based on an alleged failure to join Beverly as an indispensable party under Code of Civil Procedure section 389. The argument is that when Marleen filed her petitions as a remainder beneficiary, the other remainder beneficiary (Beverly) should have been joined. Lillian fails to cite anything in the record to indicate that she ever pursued a motion to bring Beverly in as a party or that she otherwise raised the argument in the trial court. Accordingly, Lillian has forfeited the issue. (See Jermstad v. McNelis, supra, 210 Cal.App.3d at p. 538 [a claim of error based on failure to join a compulsory party is waived if not properly raised in the trial court].) Lillian argues the issue is jurisdictional, but that is not so. "'Since the 1971 revision of Code of Civil Procedure section 389, failure to join "indispensable" parties does not deprive a court of the power to make a legally binding adjudication between the parties properly before it.'" (Golden Rain Foundation v. Franz (2008) 163 Cal.App.4th 1141, 1155.) "'[T]he failure to join an "indispensible party" is not a "jurisdictional defect" in the fundamental sense; even in the absence of an "indispensable" party, the court still has the power to render a decision as to the parties before it which will stand.' [Citation.]" (Ibid.)
Even though the issue was not properly raised in the trial court, it might still be considered on appeal if there was "some compelling reason of equity or policy which warrant[ed] belated consideration." (Jermstad v. McNelis (1989) 210 Cal.App.3d 528, 538.) Lillian presents no such compelling reason. --------
C. Fraud or Embezzlement
Finally, Lillian appears to argue that the trial court's rulings should be reversed because the trial court allegedly engaged in or abetted the commission of fraud and embezzlement when it permitted the judgment to be enforced against Lillian's financial account at UBS Financial Services. In support, she further claims in conclusory fashion that the ex parte petitions contained perjured declarations. We find Lillian's accusations on these points to be largely unintelligible and without any support in the record. "'A judgment or order of the lower court is presumed correct'" and, thus, "'error must be affirmatively shown.'" (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) "[A]n appellant must not only present an analysis of the facts and legal authority on each point made, but must also support arguments with appropriate citations to the material facts in the record. If he fails to do so, the argument is forfeited." (Nielsen v. Gibson, supra, 178 Cal.App.4th at p. 324.) Lillian has not met her fundamental burden as appellant concerning the accusations of fraud or embezzlement; accordingly, such claims are forfeited. V. Reply Brief, New Exhibits and Motion to Strike
We have read and considered Lillian's appellant's reply brief. Nothing in that brief alters our analysis or conclusions stated in this opinion. Lillian's reply brief contains a new argument that was not presented in her opening brief or in the trial court. Specifically, she argues that Judge Black, who, prior to his appointment to the bench in 1998, had been with the Fresno law firm of McCormick Barstow et al., had a conflict of interest in the present action because Attorney Robert Sullivan (Lillian's attorney for a brief time in 2010-2011) was with the law firm of McCormick Barstow et al. Aside from the fact that no showing of any ground of disqualification or conflict of interest has been shown under Code of Civil Procedure section 170.1, or under any other law, Lillian's argument is "'doubly waived'" for failure to raise it in her opening brief or in the trial court. (Children's Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 776-777.) The argument, therefore, is forfeited and will be disregarded.
Lillian has also submitted with her reply brief a number of documents that were not part of the record before the trial court at the time it entered the orders from which Lillian has appealed. The new documents were included in appellant's reply appendix (the reply appendix). Marleen has filed a motion to strike the improper exhibits from Lillian's reply appendix and also to strike any references to those exhibits in Lillian's reply brief. "An appellant's appendix may only include copies of documents that are contained in the superior court file." (The Termo Co. v. Luther (2008) 169 Cal.App.4th 394, 404 [striking noncompliant exhibits]; Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813 ["an appellate court will consider only matters which were part of the record at the time the judgment was entered"]; C.J.A. Corp. v. Trans-Action Financial Corp. (2001) 86 Cal.App.4th 664, 673 [granting motion to strike portions of brief that referred to evidence that was not part of the record].) We grant Marleen's motion to strike exhibits Nos. 2-6 and 16 from the reply appendix, along with any references thereto in the reply brief.
DISPOSITION
The judgment and orders of the trial court are affirmed. Costs on appeal are awarded to Marleen.
/s/_________
KANE, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
DETJEN, J.