Estate of Mallen CA1/1 ( 2021 )

Filed 3/19/21 Estate of Mallen CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
Estate of MARILYN ANN MALLEN,
Deceased. A156652
DANIEL A. MALLEN, (San Francisco City & County
Super. Ct. No. PES-17-301322
Petitioner and Respondent,
v.
KELLI MALLEN et al., as
Cotrustees, etc.,
Objectors and Appellants.
KELLI MALLEN et al., as A156818
Cotrustees, etc.,
Plaintiffs and Appellants, (San Francisco City & County
v. Super. Ct. No. PTR-18-302018
DANIEL A. MALLEN,
Defendant and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on February 19, 2021, be
modified as follows:
1. On page 9, footnote 7, delete the text of the footnote and replace it
with the following text, so that footnote 7 reads:
7 In a focus letter sent before oral argument, we asked
the parties to address whether the express terms of the
Trust constitute a valid transfer of the Moncada
property to the trustees of the Trust under
subdivision (b) of section 15200, citing Heggstad, supra,
16 Cal.App.4th 943, and Carne, supra, 264 Cal.App.4th
548. Although Daniel contended at oral argument and
in his petition for rehearing that this was a “new issue,”
we disagree. In their petition for order determining title
to real property, and in their briefing on appeal,
appellants did not expressly rely on either
subdivision (a) or (b) of section 15200, but pointed only
generally to Heggstad and stated that the trust
instrument “contained words of conveyance.” Moreover,
Daniel relied on both Heggstad and Carne below.
Whether a trust was established over the Moncada
property was an issue raised by appellants and litigated
by the parties, “and the fact that a party does not
address an issue, mode of analysis, or authority that is
raised or fairly included within the issues raised does
not implicate the protections of [Government Code]
section 68081.” (People v. Alice (2007) 41 Cal.4th 668,
679, italics added; Gov. Code, § 68081 [appellate court
may not decide new issue without providing opportunity
for supplemental briefing].)
2. On page 12, first paragraph, delete the last two sentences of the
paragraph, beginning with “Moreover, it is not clear,” through and including
footnote 8, and replace them with a new footnote 8, the text of which reads:
8 In his petition for rehearing, Daniel argues for the
first time that articles 5 and 6 of the Trust would
disinherit all nine children and replace them with a
continuing trust called the “Mallen Children’s Trust” as
“the sole beneficiary.” The continuing trust, in turn
would provide a conditional term of years for the
children to reside in the property, terminable by Patty’s
death, the passage of five years, or an offer to buy the
2
property for $4.5 million, and would effectively eliminate
all nine children as direct heirs on Marilyn’s death,
thereby changing the beneficiaries in violation of
section 4264, subdivision (f). We will not address these
arguments developed for the first time in a petition for
rehearing.
3. On page 13, in the last sentence of the first paragraph, which begins
“Here, unlike in Schubert,” delete the words “there is no evidence” and
replace them with “it is not clear,” so the sentence reads:
Here, unlike in Schubert, it is not clear that Marilyn’s
attorneys-in-fact changed the beneficiaries from those
designated by the laws of intestate succession, nor is
there any issue of overriding her testamentary intent
because she died intestate.
4. On page 13, second paragraph, delete the first sentence that begins
“Determining the validity of the trust,” and insert the following three
sentences:
Determining the validity of the Trust under the
provisions of section 4264, subdivisions (a) and (f) may
be further complicated in this case by the Trust’s
reference to the distribution of the Moncada property by
a “Mallen Children Trust,” which no party explains or
discusses. Moreover, Kelli told the trial court that the
Trust provision allowing all siblings to reside in the
Moncada property has been waived, because the siblings
have all agreed to sell the property. The trial court
made no specific finding on this issue.
5. On page 13, second paragraph, in the sentence beginning “Because
the issue was not presented,” replace the word “is” with “are,” so the sentence
reads:
Because the issue was not presented in the trial court
below and concerns factual issues that the record and
briefing are inadequate to permit us to resolve, we
decline to address it.
3
There is no change in the judgment.
Respondent’s petition for rehearing is denied.
Dated:
____________________________
HUMES, P. J.
A156652
Estate of Mallen
4
Filed 2/19/21 Estate of Mallen CA1/1 (unmodified opinion)
NOT TO BE PUBLISHED IN 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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
Estate of MARILYN ANN MALLEN,
Deceased. A156652
DANIEL A. MALLEN, (San Francisco City & County
Super. Ct. No. PES-17-301322
Petitioner and Respondent,
v.
KELLI MALLEN et al., as
Cotrustees, etc.,
Objectors and Appellants.
KELLI MALLEN et al., as
Cotrustees, etc., A156818
Plaintiffs and Appellants,
(San Francisco City & County
v. Super. Ct. No. PTR-18-302018
DANIEL A. MALLEN,
Defendant and Respondent.
Marilyn Ann Mallen died in September 2017, survived by her nine
children. When she died, title to one of her real properties was held in her
own name rather than by the trustees of a revocable living trust established
by her attorneys-in-fact under a durable power of attorney. Shortly after her
death, one of Marilyn’s sons, Daniel, filed a petition for probate in San
Francisco Superior Court.1 In response, three of Marilyn’s other children,
Kelli, Mary, and Kevin (hereafter appellants), filed a petition for order
determining title to property, seeking to have the real property recognized as
an asset of the trust. The trial court denied the latter petition, concluding
the petitioners failed to establish a trust had been created over the real
property. The trial court appointed Daniel administrator of Marilyn’s estate
and denied a request by his siblings to appoint a neutral administrator.
Having reviewed the parties’ briefs and the record, we now reverse the
determination that a trust was not established over the property, but affirm
the denial of appellants’ request to appoint a neutral administrator.
I. BACKGROUND
Marilyn Ann Mallen died in September 2017, in San Francisco. She
died intestate.2 Marilyn was survived by her nine children: Patricia, Kelli,
Carrie, Mary, William, Michael, Kevin, Daniel, and Thomas.
A. Durable Power of Attorney
In 2009, Marilyn executed a durable power of attorney, appointing
three of her children, Mary, Kelli, and William, as attorneys-in-fact to act
legally on her behalf in a fiduciary capacity. Among other powers, the
durable power of attorney authorized Marilyn’s attorneys-in-fact to establish
and modify trusts for her benefit and the benefit of her issue, and to transfer
1Because all individuals involved in this case share the same last
name, we refer to each of them by their first name. We intend no disrespect
in doing so.
2 Appellants dispute that Marilyn died intestate because they contend
that she established a trust, but they do not dispute she died without a valid
will, which is the definition of “intestate.” (Black’s Law Dict. (11th ed. 2019);
14 Witkin, Summary of Cal. Law (11th ed. 2020) Wills and Probate, § 87.)
2
interests in real property to the trustee of a revocable trust created by her as
settlor.
B. The Trust
In 2016, Kelli, Mary, and William, as Marilyn’s attorneys-in-fact,
executed the Marilyn Ann Mallen Revocable Trust dated December 1, 2016
(Trust). Marilyn is identified as the settlor of the Trust and Kelli, Mary, and
Kevin are identified as trustees. The Trust contains a statement of intent “to
protect the assets of Marilyn (Midge) Mallen during her lifetime and after her
death from persons other than her children” and “to create a fair and just
means to distribute trust property solely to the children of Bill and Midge
Mallen.”
Under the express terms of the Trust, the “settlor hereby transfers and
assigns to the trustees certain property (the ‘trust estate’), in trust, to be
held, administered, and distributed as provided in this instrument.” The
“Trust Estate” is described in “Article Two” of the Trust. Under the heading
“Definition of Trust Estate,” it provides: “All property subject to this
instrument from time to time is referred to as the ‘trust estate’ and shall be
held, administered, and distributed as provided in this instrument. The
trustee shall hold, administer, and distribute the property described in the
Schedule of Trust Assets (which is attached hereto and made a part of this
trust instrument), any other property that may be hereafter subject to this
trust, and the income and proceeds attributable to all such property, in
accordance with the provisions of this instrument.”
Attached to the trust instrument is a schedule of trust assets that
identifies only one asset: “1. Real property located at 244 Moncada Way, San
Francisco, CA 94127.”
3
C. The Moncada Property
During her lifetime, Marilyn owned the real property located at
244 Moncada Way in San Francisco (Moncada property). The property was
titled in her name when she died.
D. Procedural History
In October 2017, shortly after Marilyn’s death, Daniel and his sister
Carrie initiated a probate proceeding. Daniel filed a first amended petition in
February 2018, which is the operative petition here.3 Daniel sought letters of
administration and requested the trial court appoint him administrator of
Marilyn’s estate.
In response to Daniel’s petition for letters of administration, appellants
filed a petition for order determining title to real property under Probate
Code4 section 850, subdivision (a)(3).5 Appellants argued that the Trust had
been established on Marilyn’s behalf by her attorneys-in-fact pursuant to the
durable power of attorney and section 4264, subdivision (a). Appellants
argued that although Marilyn “died owning the real property located at
244 Moncada Way, San Francisco, CA” and title was in her name, the trust
instrument (1) contained words of conveyance transferring the trust estate
into the trust, (2) included the schedule of trust assets in the definition of the
trust estate, and (3) listed the Moncada property in the schedule of trust
3 Carrie is not named as a petitioner in the first amended petition.
4All further statutory references are to the Probate Code unless
otherwise stated.
5In February 2018, appellants recorded a grant deed reflecting a
transfer of the Moncada property by the trustees of the Trust into the Trust.
No party disputes that the grant deed, which was executed and recorded
after Marilyn’s death, was ineffective to convey the Moncada property into
the Trust.
4
assets attached to the Trust. Appellants asserted Marilyn intended “title to
the [Moncada property] be held in the living trust,” and argued the court had
authority under section 850, subdivision (a)(3)(B) and Estate of Heggstad
(1993) 16 Cal.App.4th 943 (Heggstad) to determine the Moncada property
was a Trust asset.
At the end of their petition, appellants also included objections to
Daniel’s petition for letters of administration. Appellants argued, among
other things, that Daniel had an actual conflict of interest with at least five of
his siblings and should not be granted letters of administration because there
was no real property that needed to be probated.
Shortly after filing their petition and objections in the probate matter,
the trial court directed appellants to file their petition in a separate trust
proceeding, which they did. Daniel filed an objection. In his briefing, Daniel
argued that Heggstad, supra, 16 Cal.App.4th 943 was inapposite because
Heggstad “requires that the owner of the property be the trustee of the
transferee trust,” but Marilyn “did not, herself, execute a declaration of trust
stating that she owned the Moncada Property as Trustee.” He also argued
that the cotrustees of the Trust were unsuitable to serve as fiduciaries to
administer the Moncada property because they “defrauded their siblings” by
expanding their powers under the durable power of attorney beyond the
limited scope they had represented to their siblings in an e-mail.6 Daniel also
6 In addition to the Moncada property, Marilyn held an interest in
property at 384 Baltimore Way, San Francisco (Baltimore Way property).
Marilyn apparently deeded Mary the Baltimore Way property in 2006, in
joint tenancy. In 2010, Mary recorded a grant deed transferring Marilyn’s
interest in the property to Mary. Daniel contends that Mary and Kelli, acting
as Marilyn’s agents under the durable power of attorney, improperly
transferred the Baltimore Way property to Mary, and further contends that
Mary secretly encumbered the property with a $435,000 loan and has not
5
argued that probate of the Moncada property was “the most equitable and
appropriate means of administering it” to avoid “all out litigation” among the
siblings about whether the Moncada property is an asset of the Trust.
Daniel also filed a reply to appellant’s objections to the petition for
letters of administration. Daniel argued appellants’ objection to the probate
petition was procedurally defective because it was inserted at the end of
appellants’ petition without being mentioned in the caption, and because
probate was the only appropriate way to proceed in light of the fact that the
Moncada property was not an asset of the Trust, the Baltimore Way property
had to be probated, probate was necessary to investigate what happened to
the loan proceeds from the Moncada and Baltimore Way properties, and
because appellants were unsuitable to serve as fiduciaries.
The trial court held a hearing on December 24, 2018. The court asked
questions of and heard responses from Kelli, Mary, and Patricia at the
hearing, though none of the sisters were placed under oath.
At the end of the hearing, appellants’ counsel asked the court to
appoint a professional fiduciary as administrator of Marilyn’s estate. The
court questioned whether it could appoint a neutral administrator sua
sponte, and told appellants’ counsel it did not have a list of private
fiduciaries. The court invited appellants to file additional briefing on
whether the court could appoint a neutral fiduciary, then took both matters
in the probate and trust proceedings under submission.
The trial court subsequently denied appellants’ petition for order
determining title to real property. The court’s order states, in relevant part:
accounted for the funds. Because issues regarding the Baltimore Way
property were not before the trial court in the proceedings below and are not
involved in this appeal, however, we express no opinion on that issue.
6
“On August 15, 2009[,] [Marilyn] had executed a durable power of attorney
for financial management naming as co-agents Kelli Mallen, Mary Mallen,
and William Mallen (the ‘Co-Agents’). [¶] . . . On December 1, 2016, the Co-
Agents executed a declaration of trust in which they identified the [Moncada
property] on Schedule A and declared three individuals as co-trustees, Kevin
Mallen, Kelli Mallen and Mary Mallen (the ‘Trust Declaration’), holding the
assets identified on Schedule A in trust for [Marilyn] during her lifetime and
thereafter for the benefit of her issue. Petitioners have not shown that a
trust was created over the real property.”
In the probate proceeding, the trial court denied appellants’ request to
appoint a neutral professional fiduciary and appointed Daniel administrator
of Marilyn’s estate.
Appellants timely filed notices of appeal in both the trust and probate
matters. We consolidated the cases on appeal.
II. DISCUSSION
A. The Moncada Property Was an Asset of the Trust
Appellants contend the trial court erred in denying their petition for
order determining title to real property, which they are terming their
“Heggstad petition.” Appellants assert that Marilyn’s agents under the
durable power of attorney had authority to create a trust, and the Trust
contained words of conveyance making the Moncada property an asset of the
Trust. We agree.
The parties’ dispute regarding the status of the Moncada property
centers on their differing interpretations of the seminal Heggstad opinion,
and its proper application under the circumstances of this case. In Heggstad,
the decedent had executed a revocable living trust, naming himself as
trustee, and identifying the trust property in a document titled schedule A,
7
which was attached to the trust document. (Heggstad, supra, 16 Cal.App.4th
at p. 946.) However, the decedent never executed a grant deed to reconvey
his interest in the real property to himself as trustee of the revocable living
trust. The appellate court held that “a written declaration of trust by the
owner of real property, in which he names himself trustee, is sufficient to
create a trust in that property, and . . . the law does not require a separate
deed transferring the property to the trust.” (Id. at p. 950.)
Daniel argues that Heggstad is inapposite here, because unlike in
Heggstad, Marilyn did not convey the Moncada property in trust to herself as
trustee, nor could she have done so because she was never trustee of the
Trust. Accordingly, he contends, “Appellants cannot establish the creation of
a trust under [section 15200, subdivision (a)] because [Marilyn] was not a
trustee, so there is no evidence whatsoever that [Marilyn] made the requisite
declaration that she held the property as trustee.”
The problem with Daniel’s argument, however, is that, as the Heggstad
court pointed out, section 15200 identifies several ways to establish a trust.
The statute provides, in relevant part: “Subject to other provision of this
chapter, a trust may be created by any of the following methods: [¶] (a) A
declaration by the owner of property that the owner holds the property as
trustee. [¶] (b) A transfer of property by the owner during the owner’s
lifetime to another person as trustee.” (§ 15200, subds. (a) & (b); see
Heggstad, supra, 16 Cal.App.4th at p. 948 [observing that “[t]hese two
methods for creating a trust are codified” in § 15200, subds. (a) & (b)].) We
agree with Daniel that section 15200, subdivision (a), the provision at issue
under the facts of Heggstad, has no applicability here because Marilyn did
not make a declaration that she held the Moncada property as trustee of the
Trust. (See Carne v. Worthington (2016) 246 Cal.App.4th 548, 559 (Carne).)
8
But section 15200, subdivision (b) provides a trust is created when the owner
transfers property during the owner’s lifetime to another person as trustee.7
That is what happened here. Marilyn is identified as the settlor of the
trust and Mary, Kelli, and Kevin are identified as trustees. Paragraph 1.1 of
the trust instrument states: “The settlor hereby transfers and assigns to the
trustees certain property (the ‘trust estate’), in trust, to be held,
administered, and distributed as provided in this instrument.” Paragraph
2.1 of the trust instrument states: “All property subject to this instrument
from time to time is referred to as the ‘trust estate’ and shall be held,
administered, and distributed as provided in this instrument. The trustee
shall hold, administer, and distribute the property described in the Schedule
of Trust Assets (which is attached hereto and made a part of this trust
instrument), and any other property that may be hereafter subject to this
trust, and the income and proceeds attributable to all such property, in
accordance with the provisions of this instrument.” The schedule of trust
assets attached to the trust instrument, in turn, lists one asset: the Moncada
property. These provisions, read together, reflect that Marilyn, through her
designated attorneys-in-fact, transferred the Moncada property to the
trustees of the Trust during her lifetime.
7 In a focus letter sent before oral argument, we asked the parties to
address whether the express terms of the Trust constitute a valid transfer of
the Moncada property to the trustees of the Trust under subdivision (b) of
section 15200, citing Heggstad, supra, 16 Cal.App.4th 943, and Carne, supra,
246 Cal.App.4th 548. Although Daniel contended at oral argument this was
a new issue, we disagree. In their petition for order determining title to real
property, and in their briefing on appeal, appellants did not expressly rely on
either subdivision (a) or (b) of section 15200, but pointed only generally to
Heggstad and stated that the trust instrument “contains words of
conveyance.” Moreover, Daniel relied on both Heggstad and Carne below.
9
Although it would have perhaps been advisable to record a grant deed
memorializing the transfer, we conclude the trust instrument itself was
sufficient to transfer the Moncada property into the Trust. (See Civ. Code,
§ 1091 [“An estate in real property . . . can be transferred only by operation of
law, or by an instrument in writing, subscribed by the party disposing of the
same, or by his agent thereunto authorized by writing.”]; § 15206 [“A trust in
relation to real property is not valid unless evidenced by one of the following
methods: [¶] (a) By a written instrument signed by the trustee, or by the
trustee’s agent if authorized in writing to do so. [¶] (b) By a written
instrument conveying the trust property signed by the settlor, or by the
settlor’s agent if authorized in writing to do so. [¶] (c) By operation of law.”].)
The trust instrument was signed by Kelli, Mary, and William as attorneys-in-
fact for Marilyn, and by Kelli, Mary, Kevin as trustees. Daniel does not
assert that the language in the trust instrument failed to effectuate a
conveyance under section 15200, subdivision (b), nor does he contend that
any additional formality was required to create a trust over the Moncada
property. Thus, while Heggstad’s facts were different, it is analogous in that
here, as in Heggstad, no separate deed was required in order for the Moncada
property to become subject to the Trust. (Carne, supra, 246 Cal.App.4th at
p. 559.) Because we conclude the record affirmatively establishes the
Moncada property was an asset of the Trust, we find it unnecessary to
address appellants’ alternative arguments that the trial court should have
granted their petition under theories of constructive and resulting trust.
Daniel also does not dispute that Marilyn’s attorneys-in-fact had
express authority under the terms of the power of attorney to create a trust
on Marilyn’s behalf under section 4264, subdivision (a). He does argue,
however, that the Trust was invalid because Marilyn’s attorneys-in-fact
10
violated section 4264, subdivision (f) when they attempted to change the
beneficiary designation from that provided by the laws of intestate
succession. Daniel relies on Schubert v. Reynolds (2002) 95 Cal.App.4th 100(Schubert) for this argument, and contends the attorneys-in-fact “attempt[ed]
to change the beneficiary designation in almost exactly the same way the
agents in Shubert [sic] did.”
As an initial matter, this issue was not presented to the trial court
below, and on that basis alone, we may refuse to consider it on appeal.
(Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1381
[failure to raise issue in trial court generally results in waiver on appeal].)
Moreover, Daniel has not demonstrated he would have prevailed on
this issue had he properly raised it below. In Schubert, a daughter, acting for
her father pursuant to a durable power of attorney, created an inter vivos
trust the day before he died that granted the daughter a life estate in his
property, with the remainder of her father’s estate to be distributed to his
grandchildren after the daughter’s death, effectively bypassing the father’s
three other children. (Schubert, supra, 95 Cal.App.4th at p. 102.) The father
had earlier executed a will that provided for the equal distribution of his
property among his four children. (Id. at pp. 102–103.) Although the
daughter had the authority to create a trust under the power of attorney and
section 4624, subdivision (a), the durable power of attorney did not grant her
the authority to change a beneficiary designation. (Schubert, at pp. 103–104.)
Because the trust she created attempted to change the beneficiaries from
those named in her father’s will and the laws of intestate succession, it
violated section 4264, subdivision (f), and was invalid. (Schubert, at pp. 106–
107.)
11
Daniel contends Marilyn’s attorneys-in-fact here, as in Schubert,
violated section 4264, subdivision (f) when they executed the trust
instrument by “providing a life estate in the [Moncada property] to Patricia
with the remainder to [Marilyn’s] children.” (Fn. omitted.) But his brief on
appeal fails to explain what specific language in the trust instrument
provided Patricia with a life estate or altered the beneficiaries. Moreover, it
is not clear from our own review of the terms of the Trust that it did anything
to alter the beneficiaries of Marilyn’s estate, or provided any interest to
Patricia that was not also provided to all other siblings. As appellants argue,
the Trust appears to grant the Moncada property to all siblings in equal
shares, and provides all nine of them a right to live in the property for five
years following Marilyn’s death if Marilyn is survived by Patricia.8
We find Schubert inapposite, because there the successor trustee
clearly engaged in self-dealing and omitted her siblings, in violation of both
the laws of intestate succession and the provisions of their father’s will.
(Schubert, supra, 95 Cal.App.4th at pp. 105–106.) As the Schubert court
explained in harmonizing the provisions of section 4264, subdivisions (a) and
(f), “An attorney-in-fact may create a trust when so authorized by the terms
of the power of attorney, but the power to designate particular trust
beneficiaries is limited. . . . Arguably, in a given case [beneficiaries other than
the principal] could be named consistent with the principal’s existing estate
plan or the laws of intestate succession, provided that doing so did not
effectuate a change in ‘the designation of beneficiaries to receive any property
. . . on the principal’s death’ (Prob. Code, § 4264, subd. (f)) or violate other
8 Kelli told the trial court that the provision allowing all siblings to
reside in the Moncada property has been waived, because the siblings have
all agreed to sell the property. The trial court made no specific finding on
this issue.
12
proscriptions of law. [Citations.] Under those circumstances, the attorney-
in-fact would not be the one selecting the beneficiaries. In effect, they would
be designated by either the principal, pursuant to the principal’s original
estate plan, or the Legislature, according to the laws of intestate succession.
Construed in this manner, Probate Code section 4264 would permit an
attorney-in-fact to create a trust for the benefit of the principal, or possibly
for the benefit of those beneficiaries already designated in the principal’s
existing estate plan or determined according to the laws of intestate
succession, in order to avoid probate.” (Schubert, at pp. 105–106.) Here,
unlike in Schubert, there is no evidence that Marilyn’s attorneys-in-fact
changed the beneficiaries from those designated by the laws of intestate
succession, nor is there any issue of overriding her testamentary intent
because she died intestate.
Determining the validity of the Trust under the provisions of section
4264, subdivisions (a) and (f) may be further complicated in this case by the
Trust’s reference to the distribution of the Moncada property by a “Mallen
Children Trust,” which no party explains and which does not appear in the
record. Because the issue was not presented in the trial court below and
concerns factual issues that the record and briefing is inadequate to permit
us to resolve, we decline to address it. (See Bogacki v. Board of Supervisors
(1971) 5 Cal.3d 771, 780 [“The general rule that a legal theory may not be
raised for the first time on appeal is to be stringently applied when the new
theory depends on controverted factual questions whose relevance thereto
was not made to appear at trial.”]; Mattco Forge, Inc. v. Arthur Young & Co.
(1997) 52 Cal.App.4th 820, 847 [“Only when the issue presented [on appeal]
involves purely a legal question, on an uncontroverted record and requires no
factual determinations, is it appropriate to address new theories.”].)
13
Daniel also contends the trial court implicitly found that Marilyn was
incompetent to execute the durable power of attorney in 2009, because “the
Court made no finding that she was competent” when she executed the
durable power of attorney and “made no finding [appellants] had any legal
authority” to execute the Trust. Daniel argues because the record is silent on
any finding that Marilyn was competent when she executed the durable
power of attorney, and an implied finding that she was incompetent would
support the trial court’s express finding that appellants “have not shown that
a trust was created over the real property,” we should presume the trial court
considered the evidence and determined Marilyn was incompetent to execute
the durable power of attorney.
Although we imply factual findings that support the judgment, we do so
only when they are supported by substantial evidence in the record.
(LSREF2 Clover Property 4, LLC v. Festival Retail Fund 1, LP (2016)
3 Cal.App.5th 1067, 1076.) In support of his argument that Marilyn was
incompetent to execute the durable power of attorney, Daniel cites the Trust
instrument itself and conclusory statements in his objections. Daniel does
not explain how the trust instrument itself demonstrates Marilyn was
incompetent to execute a durable power of attorney, and his bare conclusion
that he “is informed and believes, and upon his own observations has
concluded, that at the time [Marilyn] executed the Power of Attorney, she
had Alzheimer’s-type dementia,” and her “capacity to execute the Power of
Attorney was thus dubious at best,” is insufficient to overcome the rebuttable
presumption of competence to make decisions. (§ 810; see Gomez v. Smith
(2020) 54 Cal.App.5th 1016, 1040 [“ ‘A person challenging the validity of a
trust instrument on the grounds that the trustor lacked capacity to execute
14
the document or did so under the undue influence of another carries the
heavy burden of proving such allegations.’ ”].)
Although Daniel’s objections also reference an e-mail sent by Mary to
the other siblings in 2009, our review of the ambiguous text of that e-mail
reveals no substantial evidence of incompetence to execute a durable power of
attorney. In the e-mail, Mary explains that Kelli had advised the siblings
they should “get mom to sign a POA for the IRS,” and that when Mary went
to Marilyn’s house, she opened an “unusual” letter from Marilyn’s bank
regarding a “frozen” account. Mary states that she had an “extremely
emotional” conversation with Marilyn, and writes, “For the last several years
Kelli, myself and probably many of you have advised mom that she needed to
take care of her affairs. I think we all have met with the shared experience of
mom refusing any assistance.” The e-mail also states that while Marilyn
“misplaced” the letters Mary handed her, they found them, at which point
Marilyn read the letters, was “calm” and asked Mary to contact Marilyn’s
attorney for advice, which Mary did. The e-mail notes that Marilyn’s
attorney reviewed three powers of attorney prepared by Kelli and advised
Marilyn to sign them. Toward the end of the e-mail, Mary also states that
“mom does not remember those grandkids who have not been around.” There
is no statement by Mary in the e-mail that suggests Marilyn was incompetent
to authorize agents to handle her affairs. Accordingly, we conclude the record
is inadequate to support an implied finding by the trial court that Marilyn
was incompetent to execute a durable power of attorney in 2009.
B. Request for Neutral Administrator
Appellants also argue the trial court erred in failing to appoint a
neutral fiduciary as either an administrator of the estate or trustee of the
Trust. Although appellants cite a number of authorities supporting the
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proposition that the trial court may appoint a neutral administrator, they do
not discuss or cite authority showing the trial court abused its discretion
under the circumstances of this case by appointing Daniel administrator of
Marilyn’s probate estate. Appellants argue Daniel was “in actual conflict”
with his siblings, but they do not cite any evidence of a disqualifying conflict
of interest beyond conclusory statements that a conflict existed. (See, e.g.,
Estate of Cummings (1972) 23 Cal.App.3d 617, 625 [“In order to disqualify a
person from acting as a representative of an estate due to a conflict of
interest, his claim to property of the estate must be without sufficient reason
or his conduct must evince a lack of integrity.”]; Estate of Daigh (1963)
59 Cal.2d 367, 368–369 [fact that person seeking to be administrator has an
interest adverse to decedent’s estate does not necessarily disqualify him or
her from appointment].) Nor did appellants identify a neutral fiduciary, even
after the trial court told the parties it did not have a “ ‘list’ ” of private
fiduciaries.9 On this record, we conclude appellants have failed to
demonstrate that the trial court abused its discretion in appointing Daniel
administrator of the probate estate.
To the extent appellants argue the trial court should have appointed a
neutral trustee to administer the Trust, the trial court made no finding in
that regard, presumably because it concluded appellants had failed to
establish that a trust was created over the Moncada property. Because the
9Nor did appellants request that the trial court appoint the public
administrator. Their “Memorandum of Points and Authorities in Support of
Court’s Power to Appoint a Neutral Fiduciary” stated: “The court also has
the power to appoint the public administrator under [§ 7660 et seq.].
However, objectors prefer that either a private professional fiduciary be
appointed, or in the alternative, an attorney who can act in pro per, as both
administrator and his own counsel.”
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trial court is better placed to resolve this factual issue, we leave it to the trial
court to address if raised by the parties on remand.
III. DISPOSITION
We reverse the order of the trial court denying the petition for order
determining title to real property insofar as it determined the Moncada
property was not an asset of the Trust. In all other respects, the probate
court orders are affirmed. The parties are to bear their own costs on appeal.
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MARGULIES, J.
WE CONCUR:
HUMES, P. J.
SANCHEZ, J.
A156652
Estate of Mallen
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