Wilkin v. Nelson ( 2020 )

Filed 2/3/20; Certified for Partial Publication 2/26/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
GARY FORREST WILKIN, as 2d Civ. No. B294530
Trustee, etc., (Super. Ct. No. 16PR00234)
(Santa Barbara County)
Plaintiff and Appellant,
v.
WILLIAM NELSON,
Defendant and Respondent.
William and Hanako Nelson were married in 1981.1 In
2000, Hanako executed a trust leaving a separate property rental
home to Gary and Jay Wilkin, her adult sons from a prior
marriage. At that time, Hanako also executed a pour-over will
granting “the residue of [her] estate” to the trustee for
administration after her death. Hanako did not advise William
For convenience and clarity, we refer to the various family
1
members by their first names.
of her estate plan, but he later discovered she had placed her
rental home into a trust for the benefit of her sons.
Hanako died in 2016. Gary, who became the successor
trustee, filed a probate petition requesting that Hanako’s
separate and community property assets be transferred to her
trust. He claimed the pour-over will required that all of her real
and personal property be declared trust assets.
William filed a petition seeking reformation of the pour-
over will to confirm Hanako’s intent to transfer only the residue
of her separate property estate into the trust. He cited Estate of
Duke (2015) 61 Cal. 4th 871 (Duke), which held that “an
unambiguous will may be reformed to conform to the testator’s
intent if clear and convincing evidence establishes that the will
contains a mistake in the testator’s expression of intent at the
time the will was drafted, and also establishes the testator’s
actual specific intent at the time the will was drafted.” (Id. at
p. 898.)
Following a three-day evidentiary hearing, the probate
court found that clear and convincing evidence supported
equitable reformation of the will to provide for testamentary
control and disposition of Hanako’s separate property only. The
court denied Gary’s requests under Family Code section 11012 for
a community property award against William and ordered Gary
to reimburse William for the attorney fees incurred to expunge
the lis pendens on one of William’s properties. Gary appeals each
of these rulings.
2All statutory references are to the Family Code unless
otherwise stated.
2
We dismiss the appeal from the attorney fees award
because the order granting those fees is nonappealable.3 (See
Code Civ. Proc., §§ 405.38, 405.39.) In all other respects, we
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
William and Hanako each brought a separate property
residence into the marriage. Hanako owned rental property
located at 6155 Covington Way in Goleta (Goleta property).
William had a residence in Castro Valley. Hanako and William,
who were married for 34 years, had no prenuptial agreements or
joint estate plans.
William has five adult children from a prior marriage, plus
numerous grandchildren and great-grandchildren. Hanako and
her sons, Gary and Jay, enjoyed a close relationship with
William’s extended family. They spent holidays together and
went on many trips, including a Hawaiian cruise arranged by
Hanako.
In 2000, Hanako retained Stephen McKee, a certified
specialist in trust estates and probate law, to prepare a trust.
Hanako was friends with McKee’s sister, Mary (Mimi) Warga,
who also is one of McKee’s legal assistants. McKee has a law
office in Northern California, but spends most of his time in his
Southern California office. Warga “was the primary contact for
living trusts in the Northern California office.”
Jay, who assisted his mother in obtaining the trust, told
Warga that Hanako wanted “just trust for home” and was given a
3 The appealability of the order awarding attorney fees
under Code of Civil Procedure section 405.38 was not briefed by
the parties. At our request, the parties submitted supplemental
letter briefing on this issue.
3
quote of $600. Jay’s handwritten notes on McKee’s standard
intake questionnaire listed the Goleta property as the only asset
to be controlled by Hanako’s estate plan. Jay wrote: “Since
remarriage, the aforementioned real estate is to be willed to Gary
and Jay Wilkin. Father’s wishes.”
On March 28, 2000, Hanako and Jay met with Warga at
her office to confirm and clarify Hanako’s testamentary request
for “just trust for home.” Jay assisted Hanako in describing her
intent, which was to leave the Goleta property to her sons
equally. The meeting lasted approximately an hour.
According to Warga, Hanako did not request the
preparation of any instruments other than the trust and a grant
deed transferring the Goleta property into the trust. Warga
testified there was no discussion regarding community property
or a possible will and noted that the section of the questionnaire
designating the proposed executor of the will was left blank. Jay
testified, however, that Warga brought up the issue of a pour-
over will and that Hanako agreed to purchase one. Jay paid for
McKee’s legal services with a $600 check. The memo line of the
check contains the handwritten word “trust.”
Jay testified that Warga told him what to write on the
intake questionnaire, which lists only the Goleta property. In
response to the question asking whether Hanako considered all
her property to be community property, she answered “[n]o.” The
portions of the questionnaire seeking information about bank
accounts, investments, retirement benefit plans, life insurance
and any safe deposit boxes were either left blank or marked
“N/A” (i.e., not applicable). The proposed successor trustees to
Hanako’s trust were listed on the form, but there were no
proposed executors of a will. Warga explained that if the will had
4
been discussed, the section regarding the executors would have
been completed.
Page 7 of the questionnaire asks about “[d]istribution of
balance of property (residue) in estate.” This section was marked
inapplicable, but Warga recalled Hanako raising the possibility of
future joint estate planning with her husband which would
involve “the rest of [Hanako’s] property.”
Warga sent the intake questionnaire to McKee, who then
had a single phone call with Hanako. The only asset they
discussed was the Goleta property. There was no conversation
regarding the couple’s community property, bank accounts or
investments. McKee believed Hanako’s sole testamentary intent
was to place the Goleta property into a trust. Although he did
not discuss this with Hanako, McKee’s general practice is to
prepare a pour-over will with any trust.
McKee and his Southern California staff prepared the
estate planning documents and sent them to Warga. On May 3,
2000, Hanako met with Warga at Hanako’s home to execute the
trust and grant deed. The first page of the trust states: “The
property transferred is the settlor’s separate property and shall
be known as the ‘separate trust estate.’” Warga also provided
Hanako with a pour-over will, which states in Article 2: “Residue
– Pour-Over to Living Trust, to Descendants: I give the residue
of my estate to the trustee of the trust identified below, terms the
‘pour-over beneficiary,’ to be held and administered by the trustee
according to the terms and conditions of that trust.” This was the
first time Hanako had seen the documents.
Hanako signed all three documents, but did not read the
pour-over will. Warga notarized the trust and deed and served as
a subscribing witness to the will. Warga also brought another
5
witness to sign the will. Warga explained to Hanako that the will
“would cover any assets in her case, separate property assets,
. . . that were only in her name” and “that [those] would be left to
the trust.” Once again, there was no discussion regarding any
community property assets.
Warga mailed the original trust and pour-over will to Jay.
Hanako never saw the will again. William did not learn of its
existence until after Hanako’s death.
In 2009, Hanako asked McKee to prepare a first
amendment to the trust. That instrument nominated Gary as
the new first successor trustee and moved Jay into second
position. It also disinherited Jay from the trust, assuming Gary
and his issue survived Jay. Jay had been experiencing
substantial financial difficulties and Hanako wished to protect
the Goleta property from any creditors. The pour-over will was
not discussed, amended or republished.
Previously, in 2007, William and Hanako’s friend, Evelyn
Moore, granted them a 50% interest in her San Leandro real
property. That property was later sold and William and Hanako
received half of the sale proceeds. Hanako spent her share on a
Hawaiian cruise for 38 members of their extended families.
In 2012, William and his daughter, Mary Smith, jointly
purchased a condominium in Maui. They each paid
approximately half of the $100,000 purchase price. William’s half
came from the San Leandro property sale proceeds. Hanako
approved of the purchase, which was intended to be a family
vacation home.
Hanako subsequently developed dementia. In 2014,
William engaged an estate planning attorney, Steven Dimick, to
prepare a trust for the couple. Hanako went with William to the
6
appointment, but Dimick said he could not do a trust for her
because of her dementia. He advised William to get his own
trust.
William designated Hanako as the primary beneficiary in
his trust, with the residue going to his children upon her death.
Based upon Dimick’s advice, William funded the trust with
$137,233.68 from the couple’s joint accounts, leaving the accounts
with a $168,658.67 balance. Most of that money was generated
by William’s employment and retirement accounts. William also
transferred the Castro Valley residence and the Maui property
into the trust.4
After Hanako’s death, Gary filed a probate petition seeking
to confirm the validity of Hanako’s trust, the Goleta property’s
status as a trust asset and Gary’s entitlement to all rents from
that asset. He also sought a determination that Hanako’s
remaining assets, whether community or separate property, were
transferred to the trust through the pour-over will.
William opposed Gary’s petition and filed his own petition
seeking to invalidate Hanako’s trust as to any community
property assets, to reform the pour-over will to include only
Hanako’s separate property and to determine that the Goleta
property was a community asset. Gary opposed that petition,
claiming William had breached his fiduciary duties under
4 The probate court found that William “brought his Castro
Valley residence into [the] marriage with Hanako, and at no time
did Hanako express an intent to exert testamentary control over
this real property.” The court later confirmed the residence “as
community property, with Hanako’s interest passing to [William]
at her death.”
7
sections 721 and 1101 and Probate Code section 859. William
later withdrew his claim as to the Goleta property.
Following the evidentiary hearing, the probate court issued
its findings and order for judgment. The court found “on the
issue of equitable reformation of [Hanako’s] pour-over will [the
evidence] satisfies the clear and convincing burden of proof” and
ordered “that the residue clause of the will is equitably reformed
and limited to apply only to disposition of [Hanako’s] separate
property.” That property included Hanako’s jewelry, 200 shares
of PG&E stock, the master bedroom furniture and the Goleta
property rent monies deposited in a Wells Fargo account. The
court ordered William to return to Hanako’s trust the $17,000 he
had withdrawn from that account after her death. It also
confirmed the Goleta property as Hanako’s separate property.
The probate court determined the couple’s community
property assets belong to William as the surviving spouse, and
concluded that the Maui property is his separate property
because it was purchased with his inheritance from Moore. It
rejected Gary’s section 1101 claims regarding William’s division
of the couple’s joint accounts. The court found that Gary lacked
standing to pursue those claims and that they also are not
supported by the evidence.
Finally, the probate court granted William’s motion to
expunge the lis pendens on the Castro Valley residence and
awarded him $4,500 in attorney fees pursuant to Code of Civil
Procedure section 405.38. The court denied Gary’s requests for
attorney fees.
8
II. DISCUSSION
A. Equitable Reformation of the Pour-Over Will
Applying the clear and convincing evidence standard, the
probate court found the residue clause in the pour-over will
contains a mistake in Hanako’s expression of intent at the time
the will was drafted and must be reformed to reflect her actual
specific intent. The court concluded: “On the dispositive issue of
Hanako’s intent, the evidence shows that Hanako had a simple
and direct intent – she wanted ‘Just Trust for Home.’ The
reasonable conclusion is that Hanako did not intend to fund her
separate property trust with community property. The Residue
Clause of Hanako’s Pour-Over Will is to be interpreted to comport
with her express instructions and intent given to her estate
planning attorney and his legal assistant for a trust for her
separate property, not the Nelson community property.” Gary
contends substantial evidence does not support the court’s
findings. We disagree.
1. Standard of Review
The interpretation of a will presents a question of law for
our independent review when there is no conflict or question of
credibility in the relevant extrinsic evidence. (Johnson v.
Greenelsh (2009) 47 Cal. 4th 598, 604; Burch v. George (1994)
7 Cal. 4th 246, 254, superseded by statute on other grounds as
stated in Estate of Rossi (2006) 138 Cal. App. 4th 1325, 1331-1332,
1339.) To the extent the probate court’s decision rests on its
findings of fact, however, those findings are reviewed for
substantial evidence. (Crail v. Blakely (1973) 8 Cal. 3d 744, 750;
Ike v. Doolittle (1998) 61 Cal. App. 4th 51, 87 (Ike).) The clear and
convincing standard, however, “applies only at the trial level. On
appeal, it is assumed that the trial court applied the proper
9
standard and the judgment will not be upset if there is
substantial evidence to support it.” (Shupe v. Nelson (1967)
254 Cal. App. 2d 693, 700; see Sheila S. v. Superior Court (2000)
84 Cal. App. 4th 872, 880-881.) The parties agree the substantial
evidence standard applies here. Under this standard, we
“accept[] the evidence most favorable to the order as true and
discard[] the unfavorable evidence as not having sufficient verity
to be accepted by the trier of fact.” (In re Michael G. (2012) 203
Cal. App. 4th 580, 595.)
A trial court’s exercise of its equitable powers is reviewed
for abuse of discretion. (City of Barstow v. Mojave Water Agency
(2000) 23 Cal. 4th 1224, 1256; In re Marriage of Shimkus (2016)
244 Cal. App. 4th 1262, 1272.) Reformation of a will involves the
exercise of the court’s equitable powers. (Giammarrusco v.
Simon (2009) 171 Cal. App. 4th 1586, 1603; Ike, supra, 61
Cal.App.4th at p. 84.)
2. Substantial Evidence Supports the Probate Court’s
Findings of Hanako’s Intent and the Mistake
in Drafting the Pour-Over Will
The testator in Duke executed a holographic will devising
his entire estate to his wife. The will stated that if the couple
died at the same time, the estate would be divided between two
charities. The will did not provide for disposition of the estate if
the wife predeceased the testator, which she did. The testator’s
intestate heirs and the charities both claimed the estate. (Duke,
supra, 61 Cal.4th at p. 876.) The charities asserted that “at the
time the testator wrote his will, he specifically intended to
provide in his will that the charities would inherit his estate in
the event his wife was not alive when he died.” (Id. at p. 875.)
10
Because the will was unambiguous, the trial court excluded
extrinsic evidence of the testator’s intent and ruled in favor of the
intestate heirs. (Duke, supra, 61 Cal.4th at p. 877.) The
Supreme Court reexamined and rejected the historic rule
precluding the use of extrinsic evidence to correct a mistake in
the expression of a testator’s intent in an unambiguous will. (Id.
at p. 879.) It concluded that “[i]n cases in which clear and
convincing evidence establishes both a mistake in the drafting of
the will and the testator’s actual and specific intent at the time
the will was drafted, it is plain that denying reformation would
defeat the testator’s intent and result in unjust enrichment of
unintended beneficiaries.” (Id. at p. 890 [“[T]he paramount
consideration in construing a will is to determine the subjective
intent of the testator”]; see Placencia v. Strazicich (2019) 42
Cal.App.5th 730, 741 [“[T]he modern trend [is] toward favoring
the decedent’s intent over formalities”].)
Gary argues Duke does not apply here because the devise in
the pour-over will is general and not specific. A specific devise is
a “transfer of specifically identifiable property” (Prob. Code,
§ 21117, subd. (a)), while a general devise “is a transfer from the
general assets of the transferor that does not give specific
property.” (Id., subd. (b); see Ross & Cohen, Cal. Practice Guide:
Probate (The Rutter Group 2019) ¶ 16:532, p. 16-182 [explaining
the difference between specific and general devises].) The flaw in
Gary’s argument is that the will in Duke “left all of [the
testator’s] property” to his wife, which is a general devise. (Duke,
supra, 61 Cal.4th at p. 876; Prob. Code, § 21117, subd. (b).) There
is no suggestion the Supreme Court intended to limit its holding
to specific devises. (See Duke, at p. 898.)
11
Applying Duke’s two-prong standard, we conclude
substantial evidence supports the probate court’s decision to
equitably reform the pour-over will. Specifically, there is
substantial evidence of Hanako’s actual and specific intent at the
time the trust and will were drafted. It is undisputed she wanted
a trust to gift her separate property rental home, i.e., the Goleta
property, to her two sons, and that she also “expressed some
general desire to have a will to control the disposition . . . of her
separate property.” The will as drafted contains a mistake in the
expression of that intent. (See Duke, supra, 61 Cal.4th at pp.
890, 898.)
“The [drafting] attorney’s testimony, although not
conclusive, is entitled to much weight.” (Estate of Goetz (1967)
253 Cal. App. 2d 107, 114.) McKee testified it is fair to state that
Hanako’s trust is a separate property trust. The instrument
provides that “[t]he property transferred is the settlor’s separate
property and shall be known as the ‘separate trust estate.’”
During his deposition, McKee confirmed the trust did not include
any community assets. He also acknowledged that he and
Hanako did not discuss the pour-over will or her community
property assets during their phone call.
Warga corroborated McKee’s testimony. She testified that
Hanako’s exclusive intent when she signed the trust was to leave
the Goleta property to her sons. Warga explained to Hanako the
effect the trust and pour-over will would have on her separate
property assets, but there was no discussion regarding her
community property assets. To the contrary, Warga and Hanako
discussed the possibility of a joint estate plan with William,
which would take care of “[t]he rest of her property.”
12
In addition, Hanako’s simultaneous execution of the trust,
the pour-over will and the grant deed transferring the Goleta
property, as her separate property, into the trust further
evidences her intent to control only her separate property
through the estate plan. (See Estate of O’Connell (1972)
29 Cal. App. 3d 526, 531-532 [“Once the testamentary scheme or
general intention [of a trust or will] is discovered, the meaning of
particular words and phrases is to be subordinated to this
scheme, plan or dominant purpose”]; Estate of Goyette (2004) 123
Cal. App. 4th 67, 73 [same].)
Carl Tucker Cheadle, an expert on the attorney standard of
care in drafting estate planning instruments, testified that
Hanako’s trust is a separate property trust and, as such, should
only hold separate property assets. He opined that if Hanako’s
intent was to transfer community property assets into the trust,
the trust should have been amended to permit that transfer. He
also agreed with the probate court that Gary’s interpretation of
Hanako’s estate plan is illogical because the purpose of having a
trust is to bypass probate. Jay testified that Hanako wanted to
avoid a probate proceeding. At the time of Hanako’s death,
however, a pour-over will was exempt from probate only if the
value of the assets totaled less than $150,000. (Former Prob.
Code, § 13100.) Hanako’s share of the community estate was
significantly more than that. As the probate court aptly noted, “if
it was your intention to have property passed by a nonprobate
mechanism, you wouldn’t depend on the probate of a will to
transfer the properties there.”
Moreover, Jay testified that at the time of the March 28,
2000 meeting with Hanako and Warga, he did not understand
that Hanako’s portion of the community property would go into
13
the will. It is evident that Hanako also had no such
understanding, to the extent a will was even discussed at that
meeting. As the probate court observed, it is unclear whether
Hanako knew she had any community property assets, let alone
whether she intended to gift those assets through the trust and
pour-over will. William testified that he and Hanako never
discussed the concept of community property, and neither McKee
nor Warga explained that concept to her. Jay and Gary also
“testified (against their own interests) that Hanako never even
used the term ‘community property’ in discussing her estate
plans or testamentary intent before, during, or after the
execution of the 2000 estate plans.” The court noted that Hanako
“was treated badly by those who should have advised her in the
process” and that “had they respected her intelligence and ability
to understand, . . . they would have discussed these things with
her.”
In the absence of any evidence showing Hanako’s intent to
include community property assets in her estate plan, it was
reasonable for the probate court to interpret the evidence of her
intent as it did. (See, e.g., Multani v. Knight (2018) 23
Cal.App.5th 837, 857.) Where, as here, there is “a mistake in
expression [of] the testator’s actual and specific intent at the time
the will was drafted,” the will should be reformed to express that
actual intent. (Duke, supra, 61 Cal.4th at p. 896.) It is true that
“[p]reference is to be given to an interpretation of an instrument
that will prevent intestacy” (Prob. Code, § 21120), but “no policy
underlying the statute of wills supports a rule that would ignore
the testator’s intent and unjustly enrich those who would inherit
as a result of a mistake.” (Duke, at p. 896.)
14
3. The Probate Court Did Not Abuse Its Discretion
In Reforming the Pour-Over Will
Given the probate court’s finding that Hanako intended at
the time the trust and pour-over will were drafted to provide for
testamentary control and disposition of only her separate
property, the decision to reform the pour-over will to conform to
that actual and specific intent was well within the court’s
discretion. (See Duke, supra, 61 Cal.4th at pp. 890, 898.) Gary
has not demonstrated an abuse of that discretion.
B. Breach of Fiduciary Duty Claims
Section 1101 provides remedies when a spouse’s breach of
fiduciary duty “results in impairment to the [other] spouse’s
present undivided one-half interest in the community estate,
including, but not limited to, a single transaction or a pattern or
series of transactions, which transaction or transactions have
caused . . . a detrimental impact to the [other] spouse’s undivided
one-half interest in the community estate.” (Id., subd. (a).) Gary
maintains that any community property improperly transferred
to William’s trust, including the $137,233.68 from the couple’s
joint accounts, is part of Hanako’s estate and must be returned
under section 1101, subdivisions (g) and (h).
The probate court determined Gary’s section 1101 claims
are procedurally and substantively improper. We need not
discuss all of the court’s reasons for that ruling because we find
two dispositive. First, the court found that Gary lacks standing
to pursue his section 1101 claims. Gary asserts those claims in
his capacity as the successor trustee of Hanako’s separate
property trust, and Jay, not Gary, is the executor/personal
representative named in Hanako’s pour-over will. The will was
never admitted to probate and, consequently, “Gary has not
15
obtained standing by a court order to prosecute the [section] 1101
claim as his mother’s personal representative, to the extent that
Hanako may have had such [a] claim against [William].” The
court recognized that “while Gary could acquire standing to
assert a . . . section 1101 cause of action against [William], Gary
did not acquire standing to proceed on this claim on behalf of his
deceased mother.” (Italics added.)
William contends, and we agree, Gary has waived any
challenge to the probate court’s ruling on standing by failing to
raise the issue in his opening brief. (Paulus v. Bob Lynch Ford,
Inc. (2006) 139 Cal. App. 4th 659, 685 [“Courts will ordinarily treat
the appellant’s failure to raise an issue in his or her opening brief
as a waiver of that challenge”]; Aptos Council v. County of Santa
Cruz (2017) 10 Cal.App.5th 266, 296, fn. 7 [“Issues not raised in
the appellant’s opening brief are deemed waived or abandoned”].)
Gary devotes five pages to the standing issue in his reply brief,
but it is settled that “[p]oints raised in the reply brief for the first
time will not be considered, unless good reason is shown for
failure to present them before. To withhold a point until the
closing brief deprives the respondent of the opportunity to answer
it or requires the effort and delay of an additional brief by
permission.” (Campos v. Anderson (1997) 57 Cal. App. 4th 784,
794, fn. 3 (Campos); SCI California Funeral Services, Inc. v. Five
Bridges Foundation (2012) 203 Cal. App. 4th 549, 573, fn. 18
[“[A]ppellant cannot salvage a forfeited argument by belatedly
addressing the argument in its reply brief”].)
Gary has not provided a “good reason” for waiting until the
reply brief to discuss the probate court’s potentially dispositive
ruling regarding his standing to prosecute the section 1101
claims. (Campos, supra, 57 Cal.App.4th at p. 794, fn. 3.) Gary’s
16
admission that he “did not respond in detail to the standing
ruling in the Opening Brief” is misleading. An electronic search
of that 68-page brief confirms the word “standing” was never
mentioned. We are not persuaded by Gary’s conclusory
statement that he did not waive his response to this issue.
In any event, substantial evidence supports the probate
court’s finding, pursuant to section 1101, subdivision (a), that
William’s “withdrawal of one-half of the monies on deposit in the
Nelson joint accounts did not cause a ‘detrimental impact to
[Hanako’s] present undivided one-half interest in the community
estate’.” As the probate court explained: “Had the Court rejected
[William’s] Petition for equitable reformation of Hanako’s Pour-
Over Will, the community property funds on deposit in
[William’s] trust would have been recoverable to Hanako’s Trust
under the Residue Clause in her Pour-Over Will. Per [section]
751, Gary would have a claim to one-half of the community,
which would be the amount of $68,616.84 (representing one-half
of the community held in accounts in [William’s] individual
trust).”
But Gary has no such claim because the probate court did
equitably reform the pour-over will to include only Hanako’s
separate property – a decision we are upholding. As a result,
Hanako died intestate with respect to her community property
assets. Under Probate Code sections 100 and 6401, Hanako’s
interest in those assets passed to William as the surviving
spouse.5 Any prior actions taken by William with respect to those
assets are irrelevant because he is legally entitled to them.
5 Probate Code section 100, subdivision (a) provides: “Upon
the death of a person who is married or in a registered domestic
partnership, one-half of the community property belongs to the
17
Gary also challenges the probate court’s finding that the
Maui property is William’s separate property. Once again,
whether or not the property is a community asset is immaterial.
William inherited Hanako’s share of their community property,
and thus the Maui property belongs to him regardless of its
character. The same is true of the Castro Valley property. The
court determined that property is a community asset and, as
such, Hanako’s share passed to William upon her death. (See
Prob. Code, §§ 100, subd. (a), 6401, subd. (a).)
C. Award of Attorney Fees on Expungement Motion
Code of Civil Procedure section 405.38 entitles the
prevailing party on a motion to expunge a lis pendens to
“reasonable attorney[] fees and costs of making or opposing the
motion unless the court finds that the other party acted with
substantial justification or that other circumstances make the
imposition of attorney[] fees and costs unjust.” Gary appeals the
probate court’s order requiring him to pay $4,500 in attorney fees
incurred by William in successfully moving for expungement.
Code of Civil Procedure section 405.39 provides that “[n]o
order . . . under this chapter [Code Civ. Proc., § 405.30 et seq.]
shall be appealable. Any party aggrieved by an order made on a
motion under this chapter may petition the proper reviewing
court to review the order by writ of mandate.” (See Woodridge
Escondido Property Owners Assn. v. Nielsen (2005) 130
surviving spouse and the other one-half belongs to the decedent.”
Probate Code section 6401, subdivision (a) states: “As to
community property, the intestate share of the surviving spouse
is the one-half of the community property that belongs to the
decedent under Section 100.”
18
Cal. App. 4th 559, 577; Sixells, LLC v. Cannery Business Park
(2008) 170 Cal. App. 4th 648, 652, fn. 3.)
After the probate court granted William’s motion, Gary
filed a timely writ petition, acknowledging that “an order to
expunge a lis pendens is only properly reviewable by Petition for
Writ of Mandate.” He did not, however, raise the issue of the
attorney fees. We denied the petition.
Code of Civil Procedure section 405.39 governs the
procedure for seeking review of an order granting a motion to
expunge and awarding attorney fees under Code of Civil
Procedure section 405.38. Gary’s writ petition did not challenge
those fees and we lack jurisdiction to consider the issue on
appeal. (Id., § 405.39.) We are not persuaded by Gary’s
arguments to the contrary.
III. DISPOSITION
The appeal from the order awarding attorney fees to
William with respect to his motion to expunge the lis pendens is
dismissed. In all other respects, the probate court’s findings and
order for judgment are affirmed. William shall recover his costs
on appeal.
PERREN, J.
We concur:
GILBERT, P. J. TANGEMAN, J.
19
Jed Beebe, Judge
Superior Court County of Santa Barbara
______________________________
M. Jude Egan, for Plaintiff and Appellant.
Hoge, Fenton, Jones & Appel, Denise E. Chambliss, for
Defendant and Respondent.
20
Filed 2/26/20
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
GARY FORREST WILKIN, as 2d Civ. No. B294530
Trustee, etc., (Super. Ct. No. 16PR00234)
(Santa Barbara County)
Plaintiff and Appellant,
v. ORDER CERTIFYING OPINION
FOR PARTIAL PUBLICATION
WILLIAM NELSON, [NO CHANGE IN JUDGMENT]
Defendant and Respondent.
THE COURT:
The opinion in the above-entitled matter, filed on February
3, 2020, was not certified for publication in the Official Reports.
For good cause, it now appears the opinion should be partially
published in the Official Reports. The portions to be excluded
from publication are Section II(B), entitled “Breach of Fiduciary
Duty Claims,” and Section II(C), entitled “Award of Attorney
Fees on Expungement Motion.” It is so ordered.
There is no change in judgment.