Estate of Beach CA2/5 ( 2024 )

Filed 9/16/24 Estate of Beach CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
Estate of DONALD M. BEACH, B319019
Deceased.
MARIE BEACH et al., (Los Angeles County
Super. Ct. No. BP143125)
Petitioners and Appellants,
v.
BRUCE BEACH et al.,
Defendants and Appellants;
MICHAEL K. LANNING,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Susan J. Matcham, Clifford Klein and C.
Edward Simpson, Judges (Ret.). Mark S. Priver, Commissioner
and Ruben Garcia, Judge. Reversed with directions.
Sullivan Law Corporation and Shaunna Sullivan for
Petitioners and Appellants.
Lurie, Zepeda, Schmalz, Hogan & Martin and Steven L.
Hogan; Law Offices of David C. Hinshaw and David C. Hinshaw
for Defendants and Appellants.
Davis Law Office and D. Jason Davis for Real Party in
Interest and Respondent.
__________________
Petitioner and appellant Elizabeth Havert (also known as
Elizabeth Ann Beach),1 and interested parties Ann Marie Beach
Tabb and Marie Beach, as cotrustees of Robert Beach’s
testamentary trust (the cotrustees), appeal from a judgment
dismissing Havert’s petition under Probate Code section 11700
for a determination of the proper distribution of the estate of her
father Donald Beach.2
Havert and the cotrustees contend: (1) Havert’s claims for
elder abuse, fraud, and damages were not barred by the relevant
statutes of limitation; (2) the probate court abused its discretion
by denying Havert’s requests for a second continuance of
summary judgment proceedings and further discovery; (3) the
probate court erred in granting summary judgment because
finding that Donald signed a trust instrument on November 15,
2010, did not resolve all of the issues presented by the petition;
1 Because more than one party shares the last name Beach,
they will be referred to individually by their first names for ease
of reference.
2 All further statutory references are to the Probate Code
unless otherwise stated.
2
(4) the standard for mental capacity set forth in sections 810 to
812 is applicable to determine Donald’s capacity to execute the
trust instrument on November 15, 2010, rather than the lower
standard provided in section 6100.5 to execute a will; (5) the
probate court was required to issue an order determining the
persons entitled to distribution of Donald’s estate and their
respective shares; and (6) respondents Bruce Breach
(individually, as executor of Donald’s estate, and as trustee of
Donald’s trust) and Beverly MacDonald (collectively respondents)
do not have standing to respond or file a cross-appeal challenging
the judgment because they did not file an answer to the operative
petition, a statement of interest in the estate, or a petition for the
personal representative to participate in the proceedings.
We conclude the probate court properly found Havert’s
claims for elder abuse, fraud, and notice violations are barred by
the relevant statutes of limitations. Havert also failed to show
the probate court abused its discretion by denying her second
request for a continuance and requests for further discovery; the
discovery being sought was not necessary to oppose the motion
for summary judgment or relevant to Havert’s claim to an
intestate share.
With respect to the motion for summary judgment, no
triable issue of fact was shown as to the existence or authenticity
of the trust instrument dated November 15, 2010. The applicable
standard to assess Donald’s mental capacity to execute the trust
document on November 15, 2010, was the standard for
testamentary capacity set forth in section 6100.5, because the
trust instrument at issue was not complex. Donald’s capacity
under section 6100.5 to execute testamentary instruments on
November 15, 2010, free of undue influence, was established
3
through the admission of his will to probate. As a result, there
was no triable issue of fact concerning the validity of the trust
instrument that Donald executed on November 15, 2010. The
probate court properly granted summary judgment, but we
reverse the order dismissing Havert’s petition with directions to
enter a new order setting forth the persons entitled to
distribution of Donald’s estate and their respective shares. As a
result, we need not address the respondents’ cross-appeal
challenging the form of the judgment.
FACTS AND PROCEDURAL BACKGROUND3
I. Estate Plan
Donald had four siblings: Beverly, Bruce, Robert, and
Douglas Beach. Donald had only one child, Havert.
In May 2010, Donald executed a holographic will
distributing property to Beverly, Bruce, Robert, their children,
and Donald’s caregiver (the holographic will). Havert was not to
receive property under the holographic will.
The caregiver was terminated. On November 15, 2010,
Donald executed a typewritten will prepared by attorney Michael
Lanning (the November 2010 will) that revoked all former wills.
3 On the court’s own motion, pursuant to Evidence Code
sections 459, subdivision (a), and section 452, subdivision (d), we
take judicial notice of the appellate court records in Humiston v.
Beach (Sept. 18, 2015, B260366 [nonpub. opn.] (Humiston)),
Havert v. Beach (Dec. 27, 2018, B285862 [nonpub. opn.] (Havert
I)), and Havert v. Beach (Dec. 27, 2018, B288379 [nonpub. opn.]
(Havert II)),
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The November 2010 will expressly disinherited Havert,
instructing that she should receive no distribution from the will
or otherwise from Donald’s estate.
The November 2010 will gave Donald’s personal property to
Bruce and Beverly. The will gave the remainder of the estate to
the trustee of the “Donald M. Beach Declaration of Trust Dated
November 15, 2010”. The will stated Donald intended to identify
the trust in existence, not create a separate trust through the
will. If the gift to the trust was not operative, not valid, or could
not become effective for any reason, or if the trust referred to in
the will failed or had been revoked, then Donald gave the
remainder of his estate to the trustee named in that trust under
the same conditions stated in the trust provisions and “said Trust
provisions are hereby referred to and incorporated herein for the
purpose of creating a testamentary trust on the terms set forth
herein.” Donald appointed Bruce as executor of the will.
Donald executed a complete restatement of his trust ten
months later, on September 7, 2011, prepared by attorney
Lanning. Bruce was listed as the successor trustee. At Donald’s
death, the trust for Donald would terminate and his assets would
be distributed as follows. Douglas and Robert would receive $1
million each, subject to taxes, if they were living at the time of
Donald’s death. To Beverly, the restatement provided certain
real property, subject to an agreement allowing Bruce to
purchase the property, which the trustee was directed to carry
out.
To Bruce, the restatement provided stock and interest in a
specific corporation, plus a portion of the balance of the trust
assets, to be held in trust. The printed document gave 60 percent
of the balance of the trust assets to Bruce, but the number was
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crossed out by hand and 50 percent written in with the initials
“DB.” To Beverly, the restatement provided the remaining
percentage of the trust assets, to be held in trust. Her percentage
was originally printed as 40 percent, but the number was crossed
out and 50 percent written in with the initials “DB.” Should
Bruce or Beverly not be living, his or her trust share would pass
to his or her issue by right of representation. If Bruce or Beverly
died leaving no issue, his or her share would pass to the trust
share for the other surviving beneficiary between them.
Except as otherwise provided, upon the death of any
beneficiary for whom a trust was being administered under the
restatement, the trust share held for the benefit of that
beneficiary would pass as if the beneficiary had not been
surviving at the termination of the restatement and distributed
or held in trust subject to the provisions of the restatement.
After age 29, however, a beneficiary was entitled to withdraw the
entire balance of his or her trust share. The restatement
expressly stated, “It is Trustor’s intent that [Havert] receive no
distribution from this Trust or otherwise from Trustor’s estate.”
Donald died eight months after executing the restatement,
in May 2012. Havert learned of his death within a few days. In
June 2012, Bruce, as successor trustee, filed a petition to probate
the November 2010 will, which he attached to the petition.
In August 2012, Bruce sought to transfer all of the estate
assets held outside of the restated trust to the restated trust,
dismiss the petition for probate, and discharge petitioner as
special administrator. He attached a full copy of the restated
trust. He also attached “Exhibit A to the Donald M. Beach
Declaration of Trust Dated November 15, 2010” listing several
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assets and a signature dated November 15, 2010. The probate
court granted the petition.
Donald’s brother Robert died six months after him in
November 2012. Robert’s wife Marie was appointed as the
personal representative of Robert’s estate and became trustee of
a testamentary trust created under Robert’s will (Robert’s trust).
Following Marie’s death, the remainder of Robert’s trust would be
distributed to his children, including Tabb and her sister
Elizabeth Humiston.
II. Litigation and Will Contest
In May 2013, Tabb filed a complaint against Bruce,
Beverly, and Beverly’s son alleging causes of action for elder
financial abuse, fraud and deceit, constructive fraud, and
negligence (Tabb’s elder abuse action). The result of the
litigation is not part of the record in this matter.
In July 2013, attorney Shaunna Sullivan, on behalf of
Tabb, filed a petition to admit Donald’s holographic will to
probate (the will contest). Bruce re-filed his petition to probate
Donald’s November 2010 will. Tabb objected to Bruce’s petition
on the ground that the November 2010 will was the product of
undue influence and Donald lacked capacity to execute it. Tabb’s
sister Humiston intervened and joined in Tabb’s objections.
Tabb subpoenaed several of Donald’s estate planning
documents from attorney Lanning, including the November 2010
trust document, but Bruce moved to quash the subpoena. Bruce
argued that the documents were not directly relevant to the
probate petition, because the petition challenged Donald’s
capacity to make a will, not the validity of his trust. The probate
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court ordered production of documents related to Donald’s wills
and the claims of undue influence or lack of capacity, but
expressly excluded all documents related to the November 2010
trust and Donald’s assets.
After a trial, the probate court found Lanning’s testimony
credible that Donald’s mental state was as clear as ever on
November 15, 2010, Bruce sat in a waiting room while Lanning
met with Donald, Lanning did not discuss Donald’s estate plan
with either Bruce or Beverly, Donald knew exactly how he
wanted to dispose of his assets, and the documents were prepared
and executed that day.
The probate court found Donald had testamentary capacity
to execute the November 2010 will, and there was no undue
influence in the preparation of the November 2010 will. The
disposition of Donald’s property in his estate plan was consistent
with Donald’s stated intentions during his lifetime, and Tabb and
Humiston failed to establish the result of the will was
inequitable. In September 2014, the probate court entered its
order admitting the November 2010 will to probate and denying
Tabb’s petition.
Tabb and Humiston filed an appeal from the judgment.
(Humiston, supra, B260366.) This appellate court concluded it
was unnecessary to decide whether the trial court should have
ordered discovery of the November 15, 2010 trust document
because any error in refusing to compel production was harmless.
(Id. at pp. 26-27.)
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III. Executor’s Report and Petition for Discharge
In May 2016, Bruce, as executor, filed a report, waiver of
account and acknowledgment of satisfaction of interest, and
petition for discharge of the executor. He stated that the
beneficiaries of the personal property had received their
distributions; they filed written waivers of accounting and
acknowledgments that their interests had been satisfied. All
remaining estate assets were transferred to the restated trust in
accordance with the terms of the November 2010 will. Bruce
requested to be discharged as executor, having distributed all of
the assets of the estate in accordance with the terms of the
November 2010 will. Notice would be provided to interested
persons, including Robert’s estate and Havert at her correct
Tennessee address.
IV. Havert’s Petition
On November 9, 2016, Havert filed a petition, which she
subsequently amended, for determination of an entitlement to
estate distribution under sections 11700 and 17200. The
amended petition sought to: (1) determine the existence of a
trust declaration dated November 15, 2010, under section 17200;
(2) compel the trustee to provide a copy of the terms of the
November 2010 trust and an accounting of the probate assets
that Donald failed to transfer to the trust before his death; and
(3) determine the distribution of the estate under section 11700,
if there was no valid trust in existence on November 15, 2010.
The amended petition alleged no trust document existed on
November 15, 2010, when Donald executed his will. As a result,
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the gift of the residuary estate to the trust failed and passed
through intestate succession to Donald’s heirs, including her.
Havert also filed a statement of interest under section 11702.
That same day, Tabb filed a statement of interest under
section 11702 as the child of a named beneficiary of the restated
trust.
In March 2017, Bruce filed a motion for judgment on the
pleadings arguing that Havert had no standing, because she had
no interest in the estate. Havert opposed the motion on the
ground that she was seeking a determination, as part of the
timely administration of the probate estate, that the residue
passed by intestacy if no valid trust instrument had been
executed on or before November 15, 2010. She argued that she
had standing as an heir entitled to take property by intestate
succession. Attorney Sullivan, on behalf of Havert, filed Havert’s
declaration stating her address was incorrect on most of the
pleadings and notices sent to her, and Havert had been unaware
of the details of Tabb’s will contest concerning the holographic
will.
In June 2017, Judge Mary Thornton House issued a ruling
granting the motion for judgment on the pleadings on the ground
that the will contest had conclusively determined the November
2010 trust existed. Havert was not entitled to a distribution, and
therefore not an interested person. In addition, the will
provisions expressly disinheriting Havert further defeated her
claim as an interested person. The court directed Bruce to
prepare an order and a judgment.
In July 2017, Judge House granted, confirmed, and
approved Bruce’s report, waiver of accounting, and petition for
discharge. The court also confirmed and approved all Bruce’s
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acts as executor, discharged Bruce as executor, and released him
from any liability incurred by acts subsequent to the order. The
court ordered Bruce’s counsel to prepare a written order and give
notice of the court’s ruling.
In August 2017, Judge House entered a written order
granting Bruce’s motion for judgment on the pleadings. That
same day, the court entered a judgment without leave to amend,
denying Havert’s petition for a determination of an entitlement to
estate distribution with prejudice. In October 2017, Havert and
Tabb filed a notice of appeal from the August 2017 judgment.
(Havert I, supra, B285862.)
In December 2017, Judge House entered a written order
prepared by Havert and Tabb based on the July 2017 ruling
approving the executor’s report and discharging Bruce as
executor. The court terminated the probate of Donald’s estate,
finding it was administered as a small estate. In February 2018,
Havert and Tabb filed a notice of appeal from the December 2017
order approving Bruce’s acts as executor and discharging him as
the executor. (Havert II, supra, B288379.)
In April 2018, Havert and Tabb submitted their opening
brief in Havert I. Havert asserted she had standing as follows.
When a will provides for a distribution to a trust, the trust must
be in existence or the distribution is void. No determination had
been made that a trust existed at the time Donald executed his
will. If the gift to Donald’s trust could not be completed because
of a defect, Donald’s will provided for the creation of a
testamentary trust on the same terms as the existing trust. But
if there was no trust in existence when the will was executed,
there were no terms to incorporate in a testamentary trust, and
the residuary gift would fail entirely. Under these specific
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circumstances, which relied on the nonexistence of a trust at the
time that the will was executed, distribution of the residuary gift
would be determined under the laws of intestacy, potentially
resulting in a distribution to Havert.
Havert and Tabb also argued that Tabb had standing,
discovery should have been permitted, and termination of the
probate as a small estate was improper. They requested this
appellate court find they had standing, reverse the judgment on
the pleadings, find they have the right to compel production of
the November 2010 trust, and reverse the discovery orders,
sanctions, probate termination, and executor’s discharge.
In Bruce’s respondent’s brief in Havert I, he argued that
the appeal related solely to the judgment on the pleadings,
because Havert and Tabb’s motion to consolidate their appeals
had been denied. Bruce asserted this appellate court had already
determined the existence of the 2010 Trust as part of the will
contest proceedings in Humiston.
In December 2018, this appellate court issued its opinion in
Havert I. We concluded that Tabb was not an interested person
with respect to the probate proceedings and did not have
standing to pursue discovery. With respect to Havert, we
reversed the judgment and the order granting the motion for
judgment on the pleadings on the ground that the existence of a
November 2010 trust had not been at issue in the will contest
proceeding, and therefore, was not law of the case. (Havert I,
supra, B285862, at p. 29.) At the same time, in Havert II, this
court dismissed the appeal from the order discharging the
executor on several grounds, including that the issues were moot
based on the resolution of the issues and reversal of the judgment
in Havert I. (Havert II, supra, B288379 at pp. 2–3.)
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V. Amended Petitions and Discovery Requests After
Remand
In March 2019, attorney Sullivan, on behalf of Havert, filed
a second amended petition, in which she added new claims and
allegations related to Donald’s medical condition and undue
influence.
Havert filed a motion to compel further responses to her
demand for production and inspection of documents. In October
2019, the probate court, on its own motion, bifurcated the issues
for trial to first address whether the trust document identified in
the November 2010 will was in existence when the will was
signed. As a result of ordering the issues for trial, the court
concluded it was unnecessary to compel discovery of trust
financial documents; such discovery could be pursued later in the
proceedings if necessary.
Ultimately, on November 20, 2019, attorney Sullivan filed
the operative fourth amended petition on behalf of Havert
against the respondents. The petition sought a determination
under section 11700 of the persons entitled to distribution of the
estate and the extent of the estate. Specifically, the petition
sought a determination under section 11700 that: (1) Havert was
entitled to a distribution of the residue of the estate; (2) the
purported November 2010 trust declaration did not exist when
the November 2010 will was executed; (3) if the November 2010
trust existed, it was invalid due to Donald’s lack of capacity to
execute trust documents under sections 810 to 812 and undue
influence by respondents; and (4) any amendment was invalid,
due to lack of capacity and undue influence. In addition, Havert
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sought: (1) an order compelling the trustee to provide a copy of
the terms of the November 2010 trust and information about
Donald’s assets; (2) damages for failing to provide required
notices; and (3) damages for elder financial abuse, fraud and
deceit, constructive fraud, and conspiracy to defraud.
The petition contained extensive allegations about undue
influence and Donald’s deteriorating medical condition. The
petition noted that following a discovery order, Bruce provided a
copy of the November 2010 trust that “appears to lack authentic
signatures or an authentic date,” but the original document had
not yet been made available for review. The document
distributed the trust corpus as follows: 12.5 percent to Douglas,
12.5 percent to Robert, 35 percent to Beverly, and 40 percent to
Bruce. The petition alleged that the signature in the notary book
did not appear to be Donald’s, the signatures on the trust
document provided by Bruce did not match each other, and the
signatures on the trust document did not match the notary book
signature for “ ‘Don Beach.’ ” In addition, Donald did not usually
sign his name as “Don Beach.” Considering the number of years
that discovery was sought, the document “may have been
redacted at a later date and may be forged and/or created on a
later date.” In addition, the petition alleged the signature on the
restated trust was unlike Donald’s.
The petition alleged the November 2010 trust document
was not in existence on November 15, 2010, when Donald
executed his will, or when he died. The document is also
unauthenticated. Havert acknowledged, and expressly was not
challenging, the prior ruling that Donald had capacity on
November 15, 2010, to execute a will or the provision distributing
the residue of the estate. Instead, Havert alleged that if the
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November 2010 trust existed, it was invalid because Donald was
unduly influenced by respondents and lacked capacity to execute
trust instruments under the higher standard for capacity set
forth in sections 810 through 812. The will provisions could not
be used to make an invalid trust enforceable, and therefore, the
residue of the estate passed through intestacy. The petition also
stated Havert’s address was 3300 Shacklett Road in
Murfreesboro, Tennessee.
VI. Demurrer to Fourth Amended Complaint
Respondents filed a demurrer to the causes of action for
damages in the fourth amended petition on the ground that the
statute of limitations had run. The statute of limitations for
breach of trust was four years, the statute of limitations for elder
about was four years, and the statute of limitations for the fraud
causes of action was three years.
In support of the demurrer, the respondents requested
judicial notice of several documents showing Havert was on
notice of the allegations in the fourth amended petition to start
the statute of limitations running. First, on June 22, 2012, Bruce
served Havert at the correct Tennessee address with notice of his
June 2012 petition to administer Donald’s estate, including the
petition for probate and a copy of Donald’s November 2010 will.
Second, on August 26, 2013, Tabb served Havert at the
correct Tennessee address with her objections to Bruce’s petition
to probate the November 2010 will, alleging that Donald lacked
capacity on November 15, 2010, and that Bruce and Beverly were
barred from serving as executor due to their unclean hands,
fraud, and/or elder abuse.
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Third, on August 26, 2013, Tabb served Havert at the
correct Tennessee address with a copy of Tabb’s request for
judicial notice in support of her petition to probate the
holographic will, including a copy of Tabb’s May 2013 complaint
for damages, imposition of a constructive trust, elder financial
abuse, fraud and deceit, constructive fraud, and negligence. Tabb
also served her request for judicial notice on Marie, in her
capacity as trustee of Robert’s trust.
Havert opposed the demurrer.
Marie, representing herself in her capacity as trustee of
Robert’s trust, filed a statement of interest under section 11702
supporting and joining in Havert’s petition. In 2015, Robert’s
estate had received $489,621 from the restated trust after
payment of taxes, but Marie alleged the November 2010 trust
was not valid because it was forged or obtained through undue
influence. She relied in part on the terms of the holographic will
for her claim. She supported Havert’s claim to take the residue of
the estate through intestacy, and if Havert were not entitled to
an intestate share, then Robert’s trust was a successor to an
intestate share.
In June 2020, Tabb filed an “amended statement of
interest,” because she was representing herself in a new capacity
as co-trustee of Robert’s trust. She supported Havert’s
allegations that the November 2010 trust documents were forged
or procured by fraud, incompetence, and undue influence, as
alleged in the fourth amended petition. She made similar
allegations about purported amendments to trust documents.
She filed a copy of her appointment in June 2020 as cotrustee of
Robert’s trust.
16
On July 21, 2020, Commissioner Mark Priver was available
to hear the demurrer to Havert’s petition, but at least one of the
attorneys present refused to stipulate to Commissioner Priver
hearing the matters. Counsel stipulated, however, that
Commissioner Priver could set a continuance.
A hearing was held on the demurrer on February 25, 2021,
before Judge Clifford Klein. The court noted that Havert had
notice of the facts alleged in her petition as a result of Tabb’s
August 26, 2013 request for judicial notice, which was served on
Havert at the correct address and had Tabb’s complaint
containing the same allegations attached. Attorney Sullivan
argued that even if Havert knew she could file a petition claiming
an intestate distribution, it was not logical to file one until the
probate court had determined which will was the operative
document. The probate court took the matter under submission.
On March 2, 2021, Judge Klein issued a minute order
sustaining the respondents’ demurrer to the causes of action for
damages pursuant to sections 16061.5 through 16061.9, financial
elder abuse, fraud, and constructive trust without leave to
amend. The court concluded that Havert failed to plead facts
sufficient to invoke the delayed discovery rule. Although she
disputed that various notices, pleadings, and other documents
were properly served on her, the fourth amended petition did not
address all of the documents that were purportedly served at her
correct address. The court could properly take judicial notice of
at least some of the documents, and taken together with facts
known to Havert, they would have put a reasonable person on
notice to conduct further inquiry into the matter several years
ago. Havert did not allege that she made any effort to investigate
or litigate until she was contacted by Tabb in 2016. Even under
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the liberal standard on demurrer, Havert had failed to plead facts
sufficient to show the delayed discovery rule applied. In addition,
Havert’s claims did not “relate back” to the initial petition, which
did not assert facts relevant to elder abuse or fraud.
VII. Motion for Summary Judgment
In June 2021, the respondents filed a motion for summary
judgment. They framed the motion based on their view that the
sole issue to be decided after this court’s remand was whether the
November 2010 trust existed when the November 2010 will was
executed. The respondents argued the uncontroverted evidence
showed the trust existed at that time, was genuine, and was
authenticated by Lanning.
The respondents filed the declaration of their attorney
David Hinshaw in support of the motion for summary judgment.
Although the probate court initially ruled the November 2010
trust document was private and need not be produced, when the
probate court ordered Bruce to respond to discovery requests in
August 2019, Bruce produced his copy of the November 2010
trust and identified Lanning as the person with the original
document.
Bruce attached a copy of the November 2010 trust
document. The trust stated, “It is the Trustor’s intent that
[Havert] receive no distribution from this Trust or otherwise from
Trustor’s estate.” Under the terms of the document, at Donald’s
death, the November 2010 trust would terminate, and as soon as
the trustee deemed appropriate after tax and other
considerations, the trustee would divide the trust corpus into four
shares as follows: 12.5 percent to Douglas, 12.5 percent to
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Robert, 35 percent to Beverley, and 40 percent to Bruce. The
shares would be held in trust and administered according to the
provisions stated in the document.
If a beneficiary died while his or her share was still held in
trust, that beneficiary’s share would pass as if the beneficiary
had not survived at the termination of the trust, unless the
trustee had granted the beneficiary a power of appointment in
writing to be exercised by will. The 2010 trust did not provide for
a beneficiary’s share to pass to his or her issue by right of
representation. At age 30, however, a beneficiary could withdraw
the entire balance of his or her share at any time. Bruce was
named as the successor trustee.
The respondents submitted portions of Lanning’s
deposition testimony as well. Lanning testified that he prepared
the November 2010 trust document, the November 2010 will, and
other related estate planning documents on November 15, 2010.
No other person was involved in the conversations between
Lanning and Donald about his estate plan. Donald executed the
documents that same day, Lanning notarized the documents, and
Donald left the originals with Lanning. The November 2010
trust was executed first, in Lanning’s presence, followed by the
November 2010 will. Lanning believed he had continuous
possession of the November 2010 trust document since it was
executed. Lanning produced the original November 2010 trust
document to Havert in 2019 in response to a business record
subpoena. Lanning agreed to allow inspection of the original
November 2010 trust document at his office on January 21, 2020,
along with inspection of Donald’s signature and thumbprint in
the notary book.
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The respondents propounded a request for admission that
the November 2010 trust document was genuine, but Havert
denied the request and objected that it called for expert opinion.
Attorney Hinshaw declared that when Lanning cancelled
his deposition scheduled for January 21, 2020, attorney Sullivan
suggested Havert’s handwriting expert could still inspect the
original November 2010 trust document at Lanning’s office on
January 21, 2020. Attorney Sullivan cancelled the inspection,
however, when attorney Hinshaw refused to permit inspection of
documents signed after November 2010, and she had taken no
further steps to reschedule inspection of the original November
2010 trust document.
The respondents requested the probate court take judicial
notice of several documents, including a declaration from
Havert’s forensic document expert Linda Mitchell. Mitchell
declared that attorney Sullivan provided two copies of the
November 2010 trust document, as well as several comparison
documents, to determine the authorship of Donald’s signatures
and review his thumbprint. The quality of the images was fair to
poor, and she was requesting access to inspect the original
documents in the possession of attorney Lanning, Bruce, or the
probate court archives, in order not to mislead the trier of fact.
VIII. Request for Continuance
In August 2021, Havert filed a request for an order denying
summary judgment or continuing the hearing on the grounds
that further discovery was necessary. Havert submitted attorney
Sullivan’s declaration stating that Lanning was scheduled to
produce documents on September 1, 2021, when Havert’s
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document examiners would be able to inspect them. She
complained that attorney Hinshaw refused to produce documents
executed after November 15, 2010, and had instructed Lanning to
limit his production of documents similarly.
On September 1, 2021, Lanning allowed Havert’s experts to
review the original November 2010 trust document, as well as
several other documents that were signed the same day or close
in time. The experts reviewed the documents for approximately
two hours.
On September 9, 2021, Havert filed a document created by
the respondents’ attorney and altered by hand. The document
was entitled “Respondents’ Separate Statement of Material
Undisputed Facts in Support [Of] Their Motion for Summary
Judgment.” The word “respondents” was crossed out,
“petitioner’s” was handwritten, and “un” was crossed out from
undisputed facts. Although the document stated it was
submitted by the respondents, the column for the opposing
party’s response contained Havert’s typewritten responses.
Havert stated expert opinion was necessary to determine
whether Donald’s signature on the November 2010 trust
instrument was genuine. In addition, attorney Sullivan provided
her declaration supporting Havert’s request to deny the motion
for summary judgment or continue the hearing until discovery
was complete.
Havert’s request for a continuance was heard on
September 9, 2021, before Judge C. Edward Simpson. Attorney
Sullivan explained that certain documents had recently been
examined. Judge Simpson granted the motion for a continuance
of the hearing on the motion for summary judgment to allow
Havert’s expert witnesses to formulate their opinions on the
21
signature to the November 2010 trust based on the information
currently available to them. The probate court informally
encouraged respondents to provide redacted copies of Donald’s
2011 documents for the purpose of comparing the signatures.
On September 14, 2021, Havert filed a motion to compel
production of original documents for inspection. In addition,
Havert sent a deposition subpoena to attorney Lanning ordering
him to appear on October 13, 2021, and produce 44 separate
categories of documents, including documents that had been
produced previously.
Lanning, who was 89 years old, filed a motion to quash
Havert’s deposition subpoena, or alternatively to impose a
protective order, on the grounds that he had been previously
deposed and Havert had not sought leave of court to take a
second deposition. Two years earlier, on October 2, 2019, Havert
sent a deposition subpoena requiring Lanning to appear and
produce 62 separate categories of documents, such as all
documents reflecting a buy/sell agreement between Donald and
Bruce referenced in any trust of Donald’s and all documents
related to a power of attorney drafted for Donald. Lanning
complied with the October 2, 2019 deposition subpoena and
produced all of his records responsive to the subpoena. Forcing a
nonparty witness to repeatedly produce the same documents and
make the originals available for inspection was unreasonably
burdensome and harassing, and to the extent Lanning was
required to testify, he requested a protective order limiting
questioning to matters that he had not been previously
questioned about in deposition or at trial.
22
IX. Second Request for Continuance
Havert filed a second request for an order denying
summary judgment or continuing the hearing on the motion for
summary judgment. Havert argued there was a pending motion
to produce original trust documents that the respondents claimed
to constitute the operative trust, Lanning’s motion for a
protective order needed to be heard, and expert Mitchell needed
to see existing documents that Donald purportedly signed
through 2012 to form her opinion.
Havert provided attorney Sullivan’s declaration in support
of the request for denial or continuance of the motion for
summary judgment. Sullivan stated that it was Lanning who
cancelled the production of documents on January 21, 2020, not
her.
Havert also provided Mitchell’s declaration. Mitchell
declared that she had examined a copy of the November 2010
trust document and the original. She also received copies of trust
documents executed in 2011 and 2012, but was not permitted to
examine the original documents. Mitchell received signatures
reported to be genuine, but few were contemporary to the
documents in dispute, particularly for 2011 and 2012. It is not
uncommon for elderly patients to lose pen control and writing
skill over time, so it was important to examine other writing
samples contemporary to the disputed documents to confirm
Donald’s writing capabilities toward the end of life. Mitchell
asserted that to provide a forensically reliable opinion, she
needed to examine existing documents purportedly signed by
Donald in 2010 through 2012.
23
As part of her request for denial or continuance of the
motion for summary judgment, Havert included points and
authorities in opposition to the motion for summary judgment.
She noted that under section 11704, any statement in her
petition or the statements of interest must be considered as
evidence in the proceeding. Havert argued that because the
respondents had not denied the allegations of the fourth amended
petition by filing a response other than a demurrer and motion to
strike, the allegations of the petition were undisputed. She
asserted that pending discovery of the original trust amendments
executed after November 2010 and additional deposition
testimony from Lanning was required to oppose the motion for
summary judgment.
In addition, Havert argued multiple triable issues of fact
existed that were not resolved by the respondents’ motion for
summary judgment. Specifically, she argued allegations about
undue influence and Donald’s capacity to execute the 2010 trust
and subsequent amendments remained to be determined. She
argued that the probate court was not required to interpret the
2010 will to save an invalid trust or any subsequent trust
amendments without a determination of their authenticity or
validity. She objected to bifurcating the existence of the 2010
trust instrument without addressing her challenges to validity,
including mental capacity and undue influence. She filed a
separate statement of disputed facts.
X. Response to Second Request for Continuance
On October 22, 2021, the respondents filed a response to
Havert’s requests for denial or continuance of the motion for
24
summary judgment. They argued that no triable issue of fact had
been shown. The respondents’ evidence showed Lanning drafted
the November 2010 trust based on Donald’s directions, witnessed
Donald signing the document on November 15, 2010, and
notarized Donald’s signature. Havert did not provide an expert
declaration opining that Donald’s signature on the November
2010 trust was forged. The most reliable evidence for the expert
to have considered was the original will admitted to probate with
Donald’s genuine signature on November 15, 2010, but Havert
failed to arrange for her expert to examine the original will at the
courthouse. Havert was not the beneficiary of any trust and did
not have standing to prosecute a trust contest. The petition
under section 11700 was a probate proceeding. The fact that the
threshold issue concerned existence of a trust document did not
convert the action into a trust contest. Havert had not opposed
the motion for summary judgment with evidence and offered no
factual or legal basis to deny the motion for summary judgment.
Respondents provided the declaration of attorney Hinshaw
in support of the reply. He attached an email received from
attorney Sullivan in January 2020, stating that because the
respondents refused to produce original 2011 trust instruments,
Havert would not go forward with the document inspection by
her experts on January 21, 2021. He also had agreed to stipulate
to Havert’s expert inspection of the original will at the
courthouse, but Havert never followed up with a stipulation.
XI. Hearing on Motion for Summary Judgment
The motion for summary judgment was heard on
October 29, 2021, before Judge Susan Matcham. The probate
25
court noted that it was undisputed that Lanning produced a copy
of the November 2010 trust to Havert in October 2019. The court
stated that Havert filed a second request for a continuance, but
no opposition to the motion for summary judgment. The court
found the respondents met their burden to show a prima facie
case that the November 2010 trust existed. Havert had not
shown the existence of any disputed issue of material fact. The
court concluded Havert’s experts had multiple opportunities to
examine and compare Donald’s signatures, including an
opportunity to examine the original signature on the trust
document in January 2021, but chose not to do so. Donald’s
original signature is on the November 2010 will filed with the
court, which the expert could have examined but did not.
Havert’s reason for the inspection request did not seem material,
because it was directed at two later trust instruments.
Havert argued that under section 11704, subdivision (a),
the court was required to consider any statement made in a
petition filed under section 11700 and any statement of interest
filed under section 11702 as evidence. The court was obligated to
make an order determining the distribution of the estate under
section 11705. Havert noted that there was no answer to the
fourth amended petition. Havert argued that even assuming
there was a November 2010 trust that existed and was signed by
Donald, the respondents’ position was that the estate should be
distributed pursuant to a subsequent amendment.
The probate court did not consider the documents that
Havert filed to constitute an appropriate opposition pleading to a
motion for summary judgment, and therefore, the court did not
consider any opposition to the motion to have been filed. The
court denied the motion for a second continuance and granted the
26
motion for summary judgment on the question of whether the
November 2010 trust existed. The court ordered the parties to
file briefs addressing the remaining issues, if any.
Havert filed a motion for reconsideration of the October 29,
2021 ruling.
XII. Briefs and Ruling on Remaining Disputed Issues
On November 15, 2021, Havert filed a memorandum of
points and authorities identifying the remaining issues as
follows. The first issue was whether Donald lacked capacity
under sections 810 to 812 to execute the 2010 trust and
subsequent trust amendments, rather than under the lesser
standard of section 6100.5 for a will. Havert did not assert the
2010 trust was invalid for any other reason. If the 2010 trust
was invalid, the second issue was whether the trust was saved by
the distribution provisions of the 2010 will. Or, if a testamentary
trust was created, what the terms and effect were. The third
issue was for the probate court to issue an order under section
11705 determining the persons entitled to distribution of the
estate and specifying their shares. The probate court was
required to consider the statements in the petition and
statements of interest as evidence. In addition to the issues
identified, Havert sought reconsideration of the issues raised in
opposition to the motion for summary judgment, particularly
because the probate court did not have the opposition pleading at
the time of the ruling despite Havert’s filing.
On the same date, the respondents filed a memorandum
arguing that there were no remaining issues to resolve.
Following the summary judgment ruling, Havert had no standing
27
to pursue the remaining claims in her petition. The petition was
not a trust contest and Havert was not a beneficiary of Donald’s
trust under any version of the trust. Havert had no standing to
prosecute a trust contest or any other party’s entitlement to a
trust distribution. The probate court did not need to determine
any issues concerning validity, undue influence, or capacity to
execute the 2010 trust or subsequent amendments.
On December 8, 2021, Judge Matcham denied the motion
for reconsideration. The court granted the motion to quash the
subpoena for Lanning’s deposition on the ground that Havert had
not sought permission from the court for a second deposition.
The court continued the hearing on the issue of whether any
issue remained to be determined to December 27, 2021.
On December 23, 2021, Commissioner Priver entered a
written order that simply restated the October 29, 2021 minute
order issued by Judge Matcham finding no triable issue of fact as
to whether the 2010 trust existed and granting respondents’
motion for summary judgment, with reservation of the issue of
whether Havert’s entire fourth amended petition was resolved by
the order.
A hearing was held on December 27, 2021, before Judge
Matcham concerning the status of the case following the order
granting summary judgment. Havert argued that the trial court
must determine what the terms of the trust are, which assets are
in the trust, and how it should be distributed. Judge Matcham
reviewed the procedural history and the production of the
November 2010 trust document, before concluding that there was
nothing further to be determined about the fourth amended
petition. All claims under the fourth amended petition were
conclusively determined by the motion for summary judgment.
28
On February 18, 2022, attorney Sullivan, on behalf of
Havert and the cotrustees, filed a notice of appeal from the
judgment entered on “3/5/21 through 2/4/22[ ].”
Havert filed multiple proposed judgments, to which the
respondents filed objections. The respondents filed a proposed
order, to which Havert filed objections.
On March 29, 2022, Judge Ruben Garcia entered a written
order prepared by the respondents stating simply that the order
granting summary judgment entered on December 23, 2021 by
Commissioner Priver had determined all remaining issues on
Havert’s fourth amended petition.
That same day, Judge Garcia entered a written order
prepared by Havert containing findings and orders as follows: (1)
listing causes of action dismissed by the order sustaining the
demurrer without leave to amend; (2) denying Havert’s request
for a second continuance; (3) confirming sanctions awards against
Havert and attorney Sullivan resulting from discovery motions;
(4) “confirming” Havert’s motion for reconsideration of the order
granting summary judgment; (5) granting the motion for
summary judgment and dismissing the fourth amended petition
in its entirety, having failed to show the November 2010 trust did
not exist on November 15, 2010, or was not authentic; (6)
“Dismissal of Havert’s Fourth Amended Petition is without
prejudice to any claims of interests persons who did or could file a
Probate Code [section] 11702 Statement of Interest or a claim as
a prior successor to a named beneficiary of Decedent or as a
beneficiary under the recently produced November 15, 2010
trust”; and (7) the parties were ordered to bear their own costs in
the interests of justice.
29
On April 15, 2022, respondents filed a timely cross appeal
from the judgment entered on March 29, 2022.
DISCUSSION
I. Demurrer to Claims for Elder Abuse, Fraud, and Notice
Violations
It is undisputed that Havert’s claims for elder abuse, fraud,
and notice violations, which she asserted for the first time in the
second amended petition filed on March 28, 2019, are barred by
the relevant statutes of limitation unless saved by another
doctrine. Havert and the cotrustees contend the claims relate
back to the allegations of the original and first amended petitions
filed in 2016. We disagree.
We review the trial court’s order sustaining the demurrer
de novo and exercise our independent judgment as to whether the
petition states a cause of action as a matter of law. (Moore v.
Regents of University of California (1990) 51 Cal.3d 120, 125.)
We accept as true all material facts properly pled and matters
which may be judicially noticed, but disregard contentions,
deductions, or conclusions of fact or law. (Blank v. Kirwan (1985)
39 Cal.3d 311, 318.) We “give the complaint a reasonable
interpretation, reading it as a whole and its parts in their
context.” (Ibid.)
“The plaintiffs bear the burden of demonstrating that the
demurrer was sustained erroneously.” (Allen v. City of
Sacramento (2015) 234 Cal.App.4th 41, 52.) It is the appellants’
responsibility to support their contentions on appeal with
meaningful argument and citation to authority. (Ibid.) “When
30
legal argument with citation to authority is not furnished on a
particular point, we may treat the point as forfeited and pass it
without consideration. [Citations.]” (Ibid.) “We are not required
to examine undeveloped claims or to supply arguments for the
litigants. [Citations]” (Ibid.)
It is clear from our de novo review of the record that
Havert’s original and first amended petition do not contain
allegations supporting claims for elder abuse, fraud, or damages
for notice violations. The original and first amended complaint
were based on Havert’s allegation that no trust document existed
at the time that Donald executed his will.
Havert and the cotrustees additionally contend the statute
of limitations on Havert’s fraud claim did not begin to run until
Bruce produced certain trust documents in 2019. This is
incorrect. In August 2013, Tabb served Havert and Marie with
pleadings that alleged Donald lacked capacity to execute
testamentary instruments in November 2010, and accused Bruce
and Beverly of fraud, elder abuse, and unclean hands. Havert
and the cotrustees were on notice of their potential claims by
August 2013. The demurrer was properly sustained.
II. Denial of Second Continuance for Discovery
Havert contends the probate court abused its discretion by
denying her motions to compel production of certain documents
and her second request for a continuance to conduct discovery.
We find no abuse of discretion has been shown.
Code of Civil Procedure section 437c, subdivision (h),
provides in pertinent part: “If it appears from the affidavits
submitted in opposition to a motion for summary judgment or
31
summary adjudication, or both, that facts essential to justify
opposition may exist but cannot, for reasons stated, be presented,
the court shall deny the motion, order a continuance to permit
affidavits to be obtained or discovery to be had, or make any
other order as may be just.”
The party seeking a continuance must make a good faith
showing by affidavit that (1) the facts to be obtained are essential
to oppose the motion; (2) there is reason to believe the facts exist;
and 3) the reasons why the party cannot currently present the
facts. (Braganza v. Albertson's LLC (2021) 67 Cal.App.5th 144,
152–153 (Braganza).)
The trial court has discretion to grant or deny a request for
a continuance under Code of Civil Procedure section 437c,
subdivision (h), and we review the court’s ruling for an abuse of
discretion. (Braganza, supra, at p. 152.)
Havert has not shown that any of the discovery she was
seeking was necessary to oppose the motion for summary
judgment. For example, Havert sought production of documents
that Donald purportedly executed after November 15, 2010.
Havert’s forensic document expert Mitchell declared it is
important to examine contemporary writing samples because
elderly people often lose pen control over time. Donald’s genuine
signature on the operative will, executed on November 15, 2010,
was the best example of Donald’s contemporaneous signature for
the expert’s comparison. Mitchell inspected the original
signature on the November 2010 trust. The expert also inspected
Donald’s handwriting and signature on other contemporaneous
documents. The parties had access to Donald’s holographic will,
executed just six months before the November 2010 trust.
Havert failed to show that examination of documents Donald
32
purportedly signed after November 2010, when his pen control
had likely further declined, was necessary for Mitchell to
evaluate the signature on the November 2010 trust, rather than
merely cumulative and less informative than the exemplars she
had. No abuse of discretion has been shown.
Instead of explaining how particular discovery was
necessary to oppose the motion for summary judgment, Havert
asserts the discovery was necessary for the probate court to
determine the proper distribution under the will. As discussed
further below, the motion for summary judgment fully resolved
the issues presented by the petition without reaching the issues
for which Havert sought additional discovery. The probate court
properly denied Havert’s request for a second continuance and
requests for further discovery concerning issues unrelated to the
summary judgment motion.
III. Motion for Summary Judgment
Havert and the cotrustees contend that the motion for
summary judgment did not resolve all of the issues in the
petition, including issues about the validity of various trust
documents and the persons entitled to distribution from the
estate. On appeal, they invite this court, in conducting its de
novo review of the summary judgment proceedings, to resolve
certain issues in their favor and order distribution of the estate to
Havert, or alternatively, to find triable issues of fact requiring an
evidentiary hearing. We conclude the motion for summary
judgment resolved all of the issues in the petition, and therefore,
33
a final order stating the persons entitled to distribution and their
shares must be entered.4
A. Standard of Review
“In reviewing the trial court’s grant of summary judgment,
we assume the role of the trial court and independently
determine the merits of the motion. [Citation.] A defendant
moving for summary judgment bears the initial burden of
showing either a complete defense to the plaintiff's claims or that
the plaintiff cannot establish at least one element of the cause of
action. [Citation.] If the defendant makes this showing, the
burden shifts to the plaintiff to establish that a triable issue of
material fact exists. [Citation.] However, if the defendant fails
to meet its burden, the motion is defeated, and the plaintiff has
no obligation to demonstrate a triable issue of material fact.
[Citation.] In reviewing whether these burdens have been met,
we strictly scrutinize the moving party’s papers and construe all
facts and resolve all doubts in favor of the party opposing the
motion. [Citations.]” (Innovative Business Partnerships, Inc. v.
Inland Counties Regional Center, Inc. (2011) 194 Cal.App.4th
623, 628.)
4 We note that in the lower court and on appeal, the
appellants did not challenge the respondents’ standing to file a
motion for summary judgment.
34
B. Statutory Scheme
An order admitting a will to probate conclusively
establishes the due execution and validity of the will. (Estate of
Neubauer (1958) 49 Cal.2d 740, 745.) After letters are issued to
the personal representative, and before a final distribution order,
the personal representative or any person claiming to be entitled
to distribution of a share of the estate may file a petition under
section 11700, formerly section 1080, to determine who is entitled
to distribution of the estate. (§ 11700.) The petition must set
forth the basis for the petitioner’s claim. (Ibid.)
A petition to determine the distribution of an estate is a
separate in rem proceeding to resolve disputes over testate and
intestate rights to distribution of an estate. (Estate of Herzog
(2019) 33 Cal.App.5th 894, 903 [decided under former section
1080] (Herzog).) The due execution and validity of a will that has
been admitted to probate cannot be collaterally attacked in a
proceeding under section 11700. (In re Neubauer’s Estate, supra,49 Cal.2d at p. 747 [decided under former section 1080].)
Before the hearing on the petition, any interested person
can file a written statement of the person’s interest in the estate.
(§ 11702, subd. (a).) “The written statement may be in support of,
or opposition to, the petition. No other pleadings are necessary
and the written statement of each claimant shall be deemed
denied by each of the other claimants to the extent the written
statements conflict.” (Ibid.) A person who fails to file a timely
statement of interest may not participate in the proceeding, but
the person’s interest in the estate is not otherwise affected.
(§ 11702, subd. (b)(2).) All interested persons are bound by the
decision, regardless of whether they filed a written statement of
35
interest or otherwise appeared in the proceeding. (§ 11702, subd.
(b)(3).)
“The court shall consider as evidence in the proceeding any
statement made in a petition filed under Section 11700 and any
statement of interest filed under Section 11702.” (§ 11704, subd.
(a).)
The personal representative may petition the court for
authorization to participate in the proceeding, as necessary to
assist the court. (§ 11704, subd. (b)(1).) “The court shall
determine the manner and capacity in which the personal
representative may provide assistance in the proceeding. The
court may direct the personal representative to file papers as a
party to the proceeding, or to take other specified action, if
deemed by the court to be necessary to assist the court.”
(§ 11704, subd. (b)(2).)
The usual rules of practice and procedure applicable to civil
actions apply to proceedings under section 11700 unless the code
provides otherwise. (§ 1000.) The probate court has discretion to
order the issues for proof in a proceeding for determination of
entitlement to distribution. (Bodine v. Superior Court of Santa
Barbara County (1962) 209 Cal.App.2d 354, 362 [referring to
former section 1081].) The court may also grant summary
judgment or summary adjudication of issues in the proceeding.
(See, e.g., Estate of Groscup (1964) 231 Cal.App.2d 535, 536).
Section 11705 provides: “(a) The court shall make an order
that determines the persons entitled to distribution of the
decedent’s estate and specifies their shares. [¶] (b) When the
court order becomes final it binds and is conclusive as to the
rights of all interested persons.”
36
“A final order of distribution operates in rem to settle the
testate and intestate rights to distribution of all those who either
did or could have participated as claimants.” (Estate of Kampen
(2011) 201 Cal.App.4th 971, 987.) A person who is found to have
no claim to a distribution from the estate is “not interested in the
other questions involved in the decree and cannot be heard to
urge error in the decree in favor of other claimants or the
evidence in support thereof.” (In re Friedman’s Estate (1918) 178
Cal. 27, 34.)
C. Existence of Trust Instrument on November 15,
2010
We conclude there is no triable issue of fact as to whether
Donald signed a trust instrument on November 15, 2010. The
respondents submitted the November 2010 trust instrument.
They also submitted Lanning’s deposition testimony that he
prepared the November 2010 trust document, the November 2010
will, and other related estate planning documents on
November 5, 2010. Donald executed all the documents that same
day, Lanning notarized the documents, and Donald left the
originals with Lanning. The November 2010 trust was executed
first, in Lanning’s presence, following by the November 2010 will.
Lanning maintained continuous possession of the original
November 2010 trust document since its execution. The
respondents’ evidence established the trust document was
executed by Donald on November 15, 2010, and authenticated by
Lanning. The burden shifted to Havert to demonstrate a triable
issue of fact existed on these issues.
37
In opposition to the motion for summary judgment, Havert
relied on the statements in her operative fourth amended
petition, which are considered evidence in a proceeding under
section 11700.5 Havert alleged the November 2010 trust
document did not exist, but after the respondents submitted the
November 2010 trust document, Havert’s bare speculation in the
petition was not sufficient to create a triable issue of fact. “There
is a triable issue of material fact if, and only if, the evidence
would allow a reasonable trier of fact to find the underlying fact
in favor of the party opposing the motion in accordance with the
applicable standard of proof.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850, fn. omitted.) “ ‘It is not enough to
produce just some evidence. The evidence must be of sufficient
quality to allow the trier of fact to find the underlying fact in
favor of the party opposing the motion for summary judgment.’
[Citation.]” (Andrews v. Foster Wheeler LLC (2006) 138
Cal.App.4th 96, 108.) A triable issue of fact is not raised by
broad, conclusory assertions or mere possibilities. (Sinai Mem’l
Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196–197.) The
party opposing summary judgment may rely on inferences, but
“those inferences must be reasonably deducible from the
evidence, and not such as are derived from speculation,
5 Havert and the cotrustees contend the respondents were
deemed to have admitted the allegations of the petition as true
because they failed to file an answer to the operative petition.
This is incorrect in the context of a petition under section 11700.
The allegations of the petition are considered as evidence
pursuant to section 11702, but since other people’s interests in
the estate are not affected by failing to file a timely statement of
interest, the allegations of Havert’s petition setting forth her
claim to a share cannot simply be deemed true. (§ 11702.)
38
conjecture, imagination, or guesswork. [Citation.]” (Joseph E. Di
Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161.)
Beyond speculating that the November 2010 trust
document did not exist, Havert did not allege a factual basis to
support her conclusion and she did not allege the November 2010
trust document produced by Lanning was not genuine. Her
speculation that the document did not exist, standing alone,
would not allow a trier of fact to find the underlying fact in her
favor.
Havert did not allege in her petition that the signature on
the November 2010 trust document maintained by Lanning was
not Donald’s signature, nor did she dispute Lanning’s
authentication of that document, because Havert had not yet
reviewed the document when she filed the operative petition.
The statements in the petition, although considered evidence, did
not show any triable issue of fact as to the existence and
authenticity of the November 2010 trust document maintained by
Lanning.
Havert did not submit any additional evidence. Havert
argued that expert testimony was required to prove the signature
on the November 2010 trust document was a forgery, but after
her expert examined the original document and several
contemporaneous exemplars of Donald’s signature, Havert did
not submit any declaration that the signature on the November
2010 trust document was not Donald’s. Havert did not meet her
burden to show a triable issue of fact as to whether Donald
signed the November 2010 trust document on November 15,
2010, as authenticated by Lanning.
The cotrustees, although entitled to participate in the
proceedings under section 11700, did not file any opposition to
39
the motion for summary judgment. The allegations in their
statements of interest, which are considered evidence in a
proceeding under section 11700, were similarly speculative and
conclusory as to whether the signature on the November 2010
trust document was genuine, and failed to raise a triable issue of
fact on this issue.
D. Capacity to Execute the November 2010 Trust
Document
In Havert’s petition and in opposition to the motion for
summary judgment, she did not challenge Donald’s capacity to
execute the November 2010 will under section 6100.5, but she
asserted that Donald’s capacity to execute the November 2010
trust should be assessed under the higher standard set forth in
sections 810 to 812. On appeal, Havert and the cotrustees
contend undisputed evidence shows Donald lacked capacity
under the higher standard. In our de novo review, we conclude
the applicable standard is set forth in section 6100.5.
Sections 810 through 812 set forth the standard for
determining whether a person has the mental capacity for certain
legal acts and decisions, including the capacity “to contract, . . . to
execute wills, or to execute trusts.” (§ 811, subd. (a); Lintz v.
Lintz (2014) 222 Cal.App.4th 1346, 1351 (Lintz).) A rebuttable
presumption exists that “all persons have the capacity to make
decisions and to be responsible for their acts or decisions.” (§ 810,
subd. (a).) To establish a person lacked capacity to take a
particular action, the challenger must show (1) the person had
one of the mental deficits listed in section 811 and (2) there is a
correlation between the mental deficit and the “decision or acts in
40
question.” ( § 811, subd. (a).) The deficit must “significantly
impair[ ] the person’s ability to understand and appreciate the
consequences of his or her actions with regard to the type of act
or decision in question.” (§ 811, subd. (b).)
“Accordingly, sections 810 to 812 do not set out a single
standard for contractual capacity, but rather provide that
capacity to do a variety of acts, including to contract, make a will,
or execute a trust, must be evaluated by a person’s ability to
appreciate the consequences of the particular act he or she wishes
to take. More complicated decisions and transactions thus would
appear to require greater mental function; less complicated
decisions and transactions would appear to require less mental
function.” (Andersen v. Hunt (2011) 196 Cal.App.4th 722, 730
(Andersen).)
In comparison, section 6100.5 sets forth the standard for
testamentary capacity specifically to make a will: a person is not
mentally competent to make a will unless at the time of making
the will, the person understands the nature of the testamentary
act, the nature and situation of the individual’s property, and the
person’s relationship to others affected by the will, including
parents, spouse, and descendants. (§ 6100.5, subd. (a).)
Courts evaluate a person’s capacity to make or amend a
trust pursuant to the standard of testamentary capacity
contained in section 6100.5 when the trust or trust amendment,
in its content and complexity, closely resembles a will or codicil.
(Andersen, supra, at p. 731 [contested portion of trust
amendment, simply changing percentages of estate provided to
each beneficiary, was indistinguishable from will or codicil].)
“When determining whether a trustor had capacity to execute a
trust amendment that, in its content and complexity, closely
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resembles a will or codicil, we believe it is appropriate to look to
section 6100.5 to determine when a person’s mental deficits are
sufficient to allow a court to conclude that the person lacks the
ability ‘to understand and appreciate the consequences of his or
her actions with regard to the type of act or decision in question.’
(§ 811, subd. (b).) In other words, while section 6100.5 is not
directly applicable to determine competency to make or amend a
trust, it is made applicable through section 811 to trusts or trust
amendments that are analogous to wills or codicils.” (Andersen,
supra, at p. 731.)
Courts apply a higher standard of mental functioning than
the one articulated in section 6100.5 when a trust instrument is
unquestionably more complex than a will or codicil. (Lintz,
supra, 222 Cal.App.4th at pp. 1352–1353 [trust instrument
designated community property, provided interest to surviving
spouse for her lifetime, and provided for creation of multiple
trusts at death of surviving spouse in contemplation of estate tax
consequences].)
We conclude the standard articulated in section 6100.5
applies to the evaluation of Donald’s capacity to execute the
November 2010 trust instrument. The relevant trust provisions
were relatively simple and analogous to a will. The property
transferred to the trust was to be used for Donald’s benefit
during his lifetime, the trust terminated at his death, and the
property was to be distributed to his four siblings in specific
percentages to be kept in trust, but which could be withdrawn at
any time. The November 2010 trust closely resembled a will in
its level of complexity, and therefore, it is appropriate to apply
the same standard to evaluate Donald’s capacity to execute the
November 2010 trust. Because admission of Donald’s will to
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probate conclusively established Donald was not unduly
influenced and had capacity to execute the November 2010 will, a
finding that cannot be challenged in the present proceeding,
Donald necessarily had capacity under the same standard and
the same facts when he executed the November 2010 trust
instrument at the same time. No triable issue of fact has been
raised concerning Donald’s capacity to execute the November
2010 trust document under the lower standard established in
section 6100.5.
E. Persons Entitled to Distribution and Their Shares
Havert contends the probate court was required to make an
order determining the persons entitled to distribution of Donald’s
estate and specifying their shares. We agree. The summary
judgment proceedings fully resolved all competing claims to the
estate, and therefore, the court must enter an order stating the
persons entitled to distribution and their shares.
1. Havert’s Claim
The summary judgment proceedings fully resolved Havert’s
claim to a share of the estate through intestacy. First, she
claimed she was entitled to share of the estate because the
November 2010 trust document did not exist when Donald
executed his will, causing the gift to the trust to fail and the
assets to pass by intestacy. As stated above, the evidence
established Donald signed a trust instrument on November 15,
2010, which was authenticated by Lanning.
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Second, Havert claimed Donald’s capacity to execute the
November 2010 trust should be assessed under the higher
standard set forth in sections 810 through 812, rather than the
standard for testamentary capacity applied to wills under section
6100.5. Following from this, Havert asserted there were triable
issues of fact as to whether Donald lacked capacity and was
subject to undue influence under the higher standard. If the
probate court found the November 2010 trust invalid under the
higher standard, Havert argued that the court could not legally
and equitably interpret the November 2010 will to save the
invalid trust by creating a testamentary trust on the same terms.
Instead, Havert argued the assets in the invalid trust should pass
by intestacy to the one person expressly disinherited under
Donald’s estate plan.
As stated above, however, the correct standard to
determine Donald’s capacity to execute the November 2010 trust
was the lower standard contained in section 6100.5. The finding
that Donald met this standard and was not unduly influenced on
November 15, 2010, when he signed the documents in his estate
plan has been conclusively established for purposes of a petition
for distribution under section 11700. Havert did not allege that
the November 2010 trust was invalid for any other reason. As a
result, there is no triable issue of fact that a valid trust existed
when Donald executed his November 2010 will and at his death,
regardless of whether it was subsequent successfully amended.
The gift of the residue of the estate to the trustee of the
November 2010 trust is enforceable and the savings provision of
the November 2010 will need not be invoked. Havert’s claim to a
share of the estate by intestacy fails.
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To the extent that Havert contends her petition includes a
trust contest under section 17200 challenging amendments to the
trust after November 15, 2010, she clearly has no standing. She
is not a beneficiary of the November 2010 trust document or any
amendment.
2. Claim of Robert’s Trust
The summary judgment proceedings also resolved the
cotrustees’ claim to a share of the estate on behalf of Robert’s
trust. First, the cotrustees rely on Havert’s argument that a
higher standard for mental capacity applies to Donald’s execution
of the November 2010 trust. They contend the higher standard
was not met, and therefore, the trust assets pass through
intestacy or a testamentary trust based on the original trust
terms. We have already concluded the lower standard under
section 6100.5 applies in this case, which Donald met, and
therefore, the cotrustees’ claim under this theory fails for the
same reason as Havert’s claim.
Second, the cotrustees contend that to determine the proper
distribution of the estate, the probate court must determine
whether the trust is governed by its original terms or the terms of
a subsequent amendment. Specifically, they assert Donald
lacked capacity to execute amendments to the trust after
November 15, 2010, and therefore, the original trust terms
govern. In this case, however, it is not necessary to determine
the operative terms of the trust or the validity of any amendment
to determine the proper distribution of the estate under the will.
The November 2010 will gives the residue of Donald’s estate to
the trustee of the November 2010 trust. The residue of the estate
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is distributed to the trustee of the trust regardless of the terms of
the trust, whether the original terms apply or were subsequently
amended. (Cf. Estate of Stoddart (2004) 115 Cal.App.4th 1118,
1123 [probate court had to determine validity of trust in
proceeding under sections 11700 and 17200, because if trust was
invalid, decedent’s will gave residue of estate to individual].)
Moreover, even were we to conclude that the probate court
should have determined Donald’s capacity to execute
amendments to the trust, any error was harmless as to Robert’s
trust. (Cf. Herzog, supra, 33 Cal.App.5th at pp. 903 and 911
[appellants must show prejudice from error].) Common sense
dictates that Robert’s trust would not have been entitled to a
distribution under the original terms of the trust. Under the
original terms, the trustee had discretion to wait to divide the
trust corpus into shares for the beneficiaries until after taxes
were paid, creditors satisfied, assets liquidated or divided, and
other considerations settled. Robert died less than six months
after his brother. Although Robert was entitled to withdraw his
share at any time, as a practical matter, the trust corpus would
not have been divided into shares and distributed prior to
Robert’s death. Under the original terms, if a beneficiary died
while his or her share was still held in trust, that beneficiary’s
share passed to the other named beneficiaries in the trust
document, rather than the beneficiary’s estate or issue. Robert’s
share would have passed to his surviving siblings as if he had
pre-deceased Donald. The trustee of Robert’s trust would not
have been entitled to any distribution under the original terms of
the trust. No prejudicial error has been shown.
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3. Distribution Order
Havert contends the probate court was required to issue an
order determining the people entitled to distribution and
specifying their shares under section 11705, subdivision (a). We
agree. Because the motion for summary judgment fully resolved
the competing claims to distribution from the estate, summary
judgment must be granted and an order issued stating the
persons entitled to distribution and their shares. Specifically,
under the November 2010 will, Bruce, individually, and Beverly
are entitled to distribution of Donald’s tangible personal property
in equal shares, and Bruce, as trustee, is entitled to distribution
of the residue of the estate.
Because we conclude the December 23, 2021 order granting
summary judgment, the March 29, 2022 order stating the
December 23, 2021 order determined all remaining issues, and
the March 29, 2022 judgment dismissing Havert’s petition must
be reversed and new rulings entered consistent with this opinion
as stated in the disposition below, we need not address the
appellants’ additional contention that Commissioner Priver had
no authority to enter the December 23, 2021 order in the absence
of a stipulation by the parties. We also need not address the
respondents’ cross-appeal challenging the form of the judgment,
or the appellants’ contention that the respondents have no
standing to respond or to file their own appeal from the
judgment, because they did not file an answer to the operative
petition, a statement of interest in the estate, or a petition for the
personal representative to participate in the proceedings.
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DISPOSITION
The December 23, 2021 order granting summary judgment,
the March 29, 2022 order concerning the effect of the
December 23, 2021 order, and the March 29, 2022 judgment
dismissing Havert’s petition are reversed. The probate court is
directed to enter (1) a new and different order granting the
motion for summary judgment in its entirety, and (2) a new and
different judgment stating that Bruce Beach, individually, and
Beverly Beach are entitled to distribution of Donald Beach’s
tangible personal property in equal shares, and Bruce Beach, as
trustee of the Donald M. Beach Declaration of Trust Dated
November 15, 2010, is entitled to distribution of the residue of
Donald Beach’s estate. In the interests of justice, the parties are
to bear their own costs on appeal.
NOT TO BE PUBLISHED.
MOOR, Acting P. J.
We concur:
KIM, J.
DAVIS, J.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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