Peccia v. Guerrero CA2/3 ( 2023 )

Filed 12/4/23 Peccia v. Guerrero CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
JAKE PECCIA, B316614
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BP165601)
v.
DAVID GUERRERO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Paul T. Suzuki, Judge. Affirmed.
Law Office of Cliff Dean Schneider and Cliff Dean
Schneider for Plaintiff and Appellant.
Lagerlof, Steven C. Valerio, Kaila M. Bradley, and Robert
Bailey for Defendants and Respondents.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Adolph and Martha Guerrero established a revocable living
trust (the Trust). After Martha died, Adolph amended the Trust
to disinherit their daughter, Victoria Guerrero.1 Following
Adolph’s death, two of Victoria’s children, appellant Jake Peccia
and his sister, Karina Guerrero, filed a petition in probate court
claiming Adolph lacked testamentary capacity when he amended
the Trust. They also alleged the amendment was the result of
the undue influence of Adolph’s sons, Daniel and David Guerrero.
The probate court ultimately ruled in favor of Peccia and Karina
on one of the 10 claims asserted in their petition. The court ruled
in respondents’ favor on the remaining claims.
On appeal, Peccia contends the probate court erred by
failing to award him his costs as the prevailing party and by
failing to allow him to recall a witness for impeachment purposes.
We find no error and affirm.2
FACTUAL AND PROCEDURAL BACKGROUND
The Guerrero Family Trust
Adolph and Martha, a married couple, had three children:
Daniel, David, and Victoria. Victoria had three children of her
own: Peccia, Karina, and Michelle.
Adolph and Martha executed the Trust in 1997. Under the
terms of the Trust, upon the death of either trustor, the Trust
estate was to be divided into two separate trusts. The Trust
provided that “upon the death of the first trustor to die, [the
1 Several of the parties and relatives share the last name
Guerrero, and others the last name Peccia. For the sake of
clarity, and with the exception of appellant Peccia, we at times
refer to these individuals by their first names only. No disrespect
is intended.
2 Karina is not a party to this appeal.
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separate trust holding the deceased trustor’s share of the estate]
shall be irrevocable and cannot be amended by the surviving
trustor.” Daniel, David, and Victoria would receive equal shares
of the Trust’s assets following Adolph’s and Martha’s deaths.
Martha died in 2009. At that time, the separate trust
attributable to her portion of the Trust estate became irrevocable.
However, the Trust estate was not formally divided into two
separate trusts within six months of her death, as required by the
Trust.
In February 2012, Adolph executed the First Restated
Family Trust (the Restated Trust). The Restated Trust made the
Trust estate distributable in two equal shares to Daniel and
David, omitting Victoria.
Victoria died in June 2012.
Adolph died in August 2014. Shortly thereafter, Peccia
discovered that the Restated Trust omitted Victoria as a
beneficiary, thus precluding him from inheriting anything from
his grandparents.
Probate Court Proceedings
In 2015, Peccia and Karina (collectively petitioners) filed a
petition in probate court naming as respondents their uncles,
Daniel and David (collectively respondents). The petition alleged
that Adolph was diagnosed with Alzheimer’s disease and
dementia in 2008. The petition further alleged respondents took
advantage of Adolph’s illnesses and convinced him to disinherit
Victoria by executing the Restated Trust.
In 2017, petitioners filed the operative second amended
petition asking the court to: (1) invalidate the Trust amendment
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for lack of capacity, Probate Code sections 810–812;3
(2) invalidate the Trust amendment because of undue influence,
section 86, Welfare and Institutions Code section 15610.70;
(3) determine the validity of the Trust provisions, section 17200;
(4) impose liability on respondents for financial elder abuse,
Welfare and Institutions Code sections 15610.30, 15657.5, and
15657.6, Civil Code section 3294; (5) appoint Peccia as a
successor trustee, section 15660; (6) award attorney fees and
costs under the common fund doctrine; (7) compel return of the
Trust property, section 850; (8) impose liability for aiding and
abetting; (9) impose liability for conspiracy to invalidate the
Trust; and (10) deem Daniel, David, and Michelle Peccia to have
predeceased Adolph, section 259.4
In December 2017, petitioners filed a motion for partial
judgment on the pleadings as to their third cause of action
regarding Martha’s irrevocable subtrust. The probate court
granted the motion, finding that Martha’s subtrust became
irrevocable on her death, which predated Adolph’s amendment.
Adolph’s restatement of the Trust could therefore apply only to
his share of the Trust estate.
In August 2021, the probate court conducted a bench trial
on the remaining claims, which affected Adolph’s subtrust only.
3 Subsequent undesignated statutory references are to the
Probate Code.
4 The second amended petition named two additional
respondents: Michelle Peccia, petitioners’ sister, and her father,
Michael Peccia. The petition’s eighth and ninth causes of action
were asserted against Michelle and Michael. Neither
participated in the trial at issue in this case, and neither is a
party to this appeal.
4
The two contested issues at trial were (1) whether Adolph lacked
the capacity to execute the Restated Trust, and (2) whether
respondents unduly influenced Adolph to execute the Restated
Trust. The court found in favor of respondents on both issues. It
issued a judgment validating the Restated Trust, denied the
petition’s first four causes of action with prejudice, and ordered
petitioners “to take nothing from the causes of action pled.” The
court granted the petition’s request for attorney fees and costs to
be paid under the common fund doctrine, ordering that “[e]ach
beneficiary taking under Victoria Guerrero’s share (specifically
from Martha Guerrero[’s] Trust), shall pay attorney fees and
costs proportionately out of the share of the common fund owed to
each of them.”5
Finally, the probate court ordered the parties to bear their
own attorney fees and costs, finding that while petitioners were
the prevailing parties on their partial motion for judgment on the
pleadings related to Martha’s subtrust, respondents were the
prevailing parties at trial on the issues related to Adolph’s
subtrust.
Peccia timely appealed the probate court’s judgment.
DISCUSSION
I. The Probate Court Did Not Err In Ordering the
Parties to Bear Their Own Costs
Peccia contends the probate court erred in failing to award
him costs as the prevailing party under Code of Civil Procedure
section 1032, subdivision (b). We reject the argument.
5 The trial court did not specifically address the petition’s
remaining claims, several of which were derivative of the first
through fourth causes of action. Peccia raises no issue on appeal
specific to those individual causes of action.
5
Under section 1000, subdivision (a), the “rules of practice
applicable to civil actions” apply to proceedings under the Probate
Code, “[e]xcept to the extent that this code provides applicable
rules.” Section 1002 provides: “Unless it is otherwise provided by
this code or by rules adopted by the Judicial Council, either the
superior court or the court on appeal may, in its discretion, order
costs to be paid by any party to the proceedings, or out of the
assets of the estate, as justice may require.”
As explained in Hollaway v. Edwards (1998) 68
Cal.App.4th 94, “although Code of Civil Procedure section 1032,
subdivision (b) entitles a prevailing party in ordinary civil
litigation to costs as a matter of right, the probate court retains
discretion to decide not only whether costs should be paid, but
also, if they are awarded, who will pay and who will recover
them.” (Id. at p. 99; see also Estate of McCormack (1969) 2
Cal.App.3d 492, 499 [costs in probate proceeding not awarded as
matter of right but only within court’s discretion].) The Probate
Code’s specific rule regarding costs applies here, not Code of Civil
Procedure section 1032, subdivision (b). (See DeSaulles v.
Community Hospital of Monterey Peninsula (2016) 62 Cal.4th
1140, 1147 [Code of Civil Procedure section 1032 is only a default
rule; its definition of prevailing party does not control when
another statute provides for different means of allocating costs].)
We review the probate court’s costs determination for an abuse of
discretion. (Estate of Denman (1979) 94 Cal.App.3d 289, 291–
292.)
The probate court ordered the parties to bear their own
costs on the ground that each side partially prevailed. The court
explained that while petitioners prevailed on their argument
regarding Martha’s subtrust, respondents succeeded at trial on
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the claims related to Adolph’s subtrust. Under these
circumstances, the probate court did not abuse its discretion in
awarding costs under section 1002.6
II. The Probate Court Did Not Abuse Its Discretion by
Denying Peccia’s Request to Recall a Witness
Peccia argues the probate court deprived him of a fair trial
in violation of his due process rights when it denied his request to
recall Daniel as a witness. We disagree.
A. Background
Peccia’s counsel called Daniel as an adverse witness at
trial, pursuant to Evidence Code section 776. After Peccia’s
counsel finished Daniel’s direct examination, respondents’
counsel asked to combine his direct and cross-examination of
Daniel, “so we don’t have to re-call [sic] Mr. Guerrero.” The court
approved the request.
When respondents’ counsel finished examining Daniel, the
court inquired of Peccia’s counsel, “Any redirect under 776?”
Peccia’s counsel proceeded with redirect. During redirect, the
probate court overruled one of respondents’ objections on the
ground that “this is [a] cross-examination.” At the end of Peccia’s
examination of Daniel, the court asked if there were any further
6 Even if Code of Civil Procedure section 1032 applied in this
case, we would find Peccia has failed to establish error on appeal.
Peccia cites no legal authority to support his assertion that the
court’s order in his favor as to Martha’s share of the Trust estate
constituted “net monetary” relief to him, rather than the recovery
of “other than monetary relief,” which would allow the court to
award costs in its discretion. (Code Civ. Proc., § 1032,
subd. (a)(4); Jameson v. Desta (2018) 5 Cal.5th 594, 608–609
[appellant must support contentions with citations to authority];
Cal. Rules of Court, rule 8.204(a)(1)(C).)
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questions. Peccia’s counsel asked: “[W]ould I be able to call the
witness back for a limited purpose later on?” The court
responded, “It’s up to you. It’s subject to whatever objection, I
guess.” Counsel then replied, “At this time, no further
questions.” The court excused Daniel “for the moment.”
Several days later, after Peccia excused his final witness
and during the discussion of his exhibits, Peccia’s counsel told the
court, “Actually, hold on a second, I was going to call Daniel
Guerrero again, but I was going to wait until other witnesses had
been called.” The court then inquired whether Peccia’s counsel
was resting his case, and counsel replied, “[I]t depends on
whether I’ll be able to call Daniel Guerrero subsequently.” The
trial court responded, “It depends on who [respondents] call.”
Respondents’ counsel stated he had no plans to call Daniel as a
witness because he had already testified. Respondents’ counsel
also contended it would be improper to recall Daniel as a witness
unless there was a proffer to explain why Peccia’s counsel was
previously “unable to ask the questions that he is intending to
ask.” The probate court asked Peccia’s counsel for an offer of
proof as to why he wanted to reopen Daniel’s testimony. Counsel
responded he wanted “[t]o impeach some of [Daniel’s] testimony.”
Respondents’ counsel objected under Evidence Code
section 352. Counsel argued that Peccia had already cross-
examined Daniel and reopening his testimony would allow the
case to “drag on.” The probate court reserved its ruling until it
could review the portion of the transcript reflecting Peccia’s
counsel’s question to the court about recalling Daniel.
After a break, the court read the relevant portion of the
transcript into the record. The court then asked for respondents’
position on Peccia calling Daniel as a “rebuttal” witness.
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Respondents’ counsel objected that Daniel was not a rebuttal
witness, and Peccia’s counsel already had “every opportunity to
question” Daniel. Peccia’s counsel replied that there had been
“new testimony by subsequent witnesses that’s now raised the
opportunity for impeachment.” He provided no further details.
The court denied Peccia’s request to recall Daniel,
explaining: “Here’s my hesitancy: I think we could do this with
almost any witness that might finish testifying, that you might
find some subsequent information or inquiry or the attorneys
might think that, oh, I should have asked that question. And if I
were to allow rebuttal for every witness like that, the trial would
just keep going on and on. [¶] So, I think [that] in the interest of
[Evidence Code section] 352, I don’t think I should open it up
again. . . . [¶] . . . I’m going to sustain the objection.” Peccia’s
counsel interjected, “Your honor, there are at least . . . 17
different points for impeachment.” The court replied, “That’s
exactly why I do not want to open it up, because it sounds like
you’re going to open up a whole case again in terms of
testimony . . . .” The probate court sustained respondents’
objection to recalling Daniel.
B. Peccia did not make an adequate offer of proof or
otherwise establish a miscarriage of justice, as
required for reversal under Evidence Code
section 354
Peccia asserts the probate court’s order excluding Daniel’s
further testimony was reversible error. However, under Evidence
Code section 354, “[a] verdict or finding shall not be set aside, nor
shall the judgment or decision based thereon be reversed, by
reason of the erroneous exclusion of evidence unless . . . the error
. . . resulted in a miscarriage of justice and it appears of record
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that: [¶] (a) The substance, purpose, and relevance of the
excluded evidence was made known to the court by the questions
asked, an offer of proof, or by any other means; [¶] (b) The rulings
of the court made compliance with subdivision (a) futile; or [¶]
(c) The evidence was sought by questions asked during cross-
examination or recross-examination.”
The “failure to make an adequate offer of proof in the court
below ordinarily precludes consideration on appeal of an
allegedly erroneous exclusion of evidence.” (Shaw v. County of
Santa Cruz (2008) 170 Cal.App.4th 229, 282.) This is because an
offer of proof is necessary to assess prejudice. (People v. Anderson
(2001) 25 Cal.4th 543, 580 (Anderson).) For example, in
Anderson, trial counsel informed the court that a witness might
be called to “impeach” another witness, but “did not offer to show
what material impeachment [the witness] might provide.” (Id. at
p. 581.) Our Supreme Court found the offer of proof “insufficient”
and declined to reverse under Evidence Code section 354,
“because, among other things, the reviewing court must know the
substance of the excluded evidence in order to assess prejudice.”
(Id. at p. 580; see also People v. Nieves (2021) 11 Cal.5th 404, 433
[“We discern no error in the trial court’s ruling ‘when defendant
made no offer of proof at trial explaining why the witness[es]
should have been permitted to [testify]’ ”].)
Here, the probate court asked Peccia’s counsel for an offer
of proof, and counsel responded that Daniel’s testimony would be
used “to impeach some of his testimony.” Counsel later added
that there had been “new testimony by subsequent witnesses
that’s now raised the opportunity for impeachment,” and that
there were “at least . . . 17 different points for impeachment.” As
in Anderson, these general statements regarding impeachment
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fail to convey what “material impeachment” testimony Daniel
would have provided. (Anderson, supra, 25 Cal.4th at p. 581.)
We cannot reverse the probate court’s judgment without knowing
what the excluded evidence would have conveyed, and thus how
Peccia was prejudiced. Peccia has failed to establish how the
exclusion of Daniel’s further testimony resulted in a miscarriage
of justice, either through an offer of proof or by explaining on
appeal how he was prejudiced. (Conservatorship of Farrant
(2021) 67 Cal.App.5th 370, 378–379; Bowman v. Wyatt (2010) 186
Cal.App.4th 286, 329.) Moreover, Peccia does not argue, and the
record does not reflect, that any offer of proof would have been
futile or that the excluded impeachment “evidence was sought by
questions asked during cross-examination or recross-
examination.” (Evid. Code, § 354, subds. (b)–(c).)
Under Evidence Code section 354, there is no basis to
reverse the judgment based on the exclusion of Daniel’s
impeachment or rebuttal testimony.
C. The trial court did not abuse its discretion under
Evidence Code section 352
Further, the trial court did not abuse its discretion in
sustaining respondents’ objection under Evidence Code
section 352. (People v. Pineda (2022) 13 Cal.5th 186, 222.)
Evidence Code section 352 affords the trial court discretion to
exclude evidence if its probative value is substantially
outweighed by the probability that its admission will necessitate
undue consumption of time. In addition, “[a]fter a witness has
been excused from giving further testimony in the action, he
cannot be recalled without leave of the court. Leave may be
granted or withheld in the court’s discretion.” (Evid. Code,
§ 778.)
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The probate court implicitly found the probative value of
Daniel’s unknown “impeachment” testimony was outweighed by
the probability that admitting the evidence would necessitate
“undue consumption of time.” We find no abuse of discretion
given the lack of information as to probative value, as well as the
court’s awareness that Daniel had already testified on direct and
re-direct, and he had already been cross-examined. The probate
court could reasonably conclude that an opportunity for what
would essentially be further cross-examination on numerous
unspecified issues carried a high likelihood of undue consumption
of time. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1309
(Espinoza) [no error where trial court excluded witness due to
undue consumption of time under Evidence Code section 352
where if witness were called, “[i]t would require the calling of
other numerous witnesses in rebuttal”]; People v. Renteria (1960)
181 Cal.App.2d 214, 220–221 [rejecting claim of denial of fair
trial and violation of due process where trial court refused to
recall witness for impeachment purposes when witness had
already testified and was subject to cross- and re-recross
examination in case in chief, then testified again in rebuttal, and
was cross-examined again].) Peccia has not established that the
court “ ‘exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage
of justice.’ [Citation.]” (Espinoza, at p. 1310.)
Finally, we note that “[a] trial court has the inherent
authority and responsibility to fairly and efficiently administer
the judicial proceedings before it.” (California Crane School, Inc.
v. National Com. for Certification of Crane Operators (2014) 226
Cal.App.4th 12, 22.) This includes the authority to “take[ ]
measures to expedite the proceeding” and the court “is vested
12
with discretion over the scope of rebuttal.” (Ibid.) The probate
court considered that Peccia had called Daniel to testify and
conducted a redirect and cross-examination. At no point was
Peccia’s counsel’s questioning of Daniel cut short. Rather,
counsel chose to excuse Daniel for strategic reasons.
Peccia argues counsel only excused Daniel because he was
relying on the probate court’s statement that counsel could recall
Daniel to testify, so counsel “chose to wait” for a “better tactical
moment.” However, the probate court cautioned that Daniel’s
recall was subject to objection. When Peccia’s counsel attempted
to recall Daniel, respondents’ counsel in fact objected. The court
asked for an offer of proof, took a break to review the transcript,
heard further argument from both parties, and only then
sustained the objection. “Because the court’s discretion to admit
or exclude impeachment evidence ‘is as broad as necessary to
deal with the great variety of factual situations in which the
issue arises’ [citation], a reviewing court ordinarily will uphold
the trial court’s exercise of discretion.” (People v. Clark (2011) 52
Cal.4th 856, 932.) We do so here.
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DISPOSITION
The judgment is affirmed. Respondents are entitled to
their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
LAVIN, Acting P. J.
EGERTON, J.
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