East Bay Regional Park District v. Griffin

Filed 8/18/16
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
EAST BAY REGIONAL PARK
DISTRICT,
A141625, A142154
Plaintiff and Respondent,
v. (Contra Costa County
Super. Ct. No. P09-01129)
GEOFFREY M. GRIFFIN, as Trustee, etc.,
Defendant;
SIDNEY CORRIE, JR., et al.,
Objectors and Appellants.
SIDNEY CORRIE, JR., et al.,
Plaintiffs and Appellants, A143688
v.
GEOFFREY M. GRIFFIN, as Trustee, etc.,
Defendant;
EAST BAY REGIONAL PARK
DISTRICT,
Objector and Respondent.
These consolidated appeals arise out of a dispute concerning the trust of Armand
Borel. The trust states that, upon Borel’s death, a parcel of the trust’s real property is to
be distributed to the East Bay Regional Park District (the District) for the purposes of
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II.B.
establishing an agricultural park. A portion of that same property is also the subject of an
option agreement between Borel and Sidney J. Corrie.
After Borel’s death, Corrie filed a petition for an order instructing the trustee to
convey a portion of the property to him pursuant to the option agreement. The District
opposed that petition, and also filed a competing petition pursuant to Probate Code1
section 17200. The District’s section 17200 petition sought an order authorizing the
trustee to distribute the property to the District and to receive an $800,000 loan on behalf
of the trust. The probate court granted the District’s petition, and Corrie appealed.2 The
District subsequently petitioned the probate court pursuant to section 1310,
subdivision (b) to authorize the immediate distribution of the land and acceptance of the
loan notwithstanding the pending appeal. The order granting that motion is also on
appeal. While the first two appeals were pending, the probate court held a trial on the
validity of Corrie’s option rights and issued a statement of decision finding Corrie’s
option was unenforceable. Judgment was entered in favor of the District, and a third and
final appeal followed.
We find appellants are not entitled to relief in connection with their first two
appeals, because under section 1310, subdivision (b), the actions taken by the trustee are
valid, regardless of the outcome on appeal. Accordingly, those appeals are dismissed.
As to the third appeal, we affirm, as we agree with the probate court that the option
agreement is void and unenforceable.
I. BACKGROUND
A. The Trust
Armand Borel was the settlor and trustee of the Armand Borel Trust dated
June 20, 1994. The trust’s estate consists of various real and personal property, including
a 16.65-acre parcel of real property located in Danville (the Danville property).
1
All statutory references are to the Probate Code unless otherwise specified.
2
Lynette Arbios Cleland and Peter Arbios, Borel’s heirs, also opposed the
District’s petition and joined in Corrie’s appeal. We refer to Corrie, Cleland, and Arbios
collectively as appellants.
2
Borel executed a revised trust instrument on July 14, 2008 (the Trust). During his
lifetime, Borel was to act as the trustee and could distribute proceeds from the Trust to
himself. On Borel’s death, the Trust was to become irrevocable, Noelle Flanagan was to
be appointed as the successor trustee, and various distributions were to be made.
Specifically, the successor trustee was to distribute $300,000 to Dana Vasquez, give all of
Borel’s firearms and ammunition to Carl J. Mast, and pay the estate’s death taxes, debts,
and expenses.
As to the remaining trust estate, the successor trustee was to distribute the Danville
property to the District “for so long as it [is] used as and for an agricultural park.” The
distribution of the Danville property was further conditioned on the District doing or
performing all of the following: “all structures of whatever kind or nature are to remain
on the property, and be maintained, and if necessary, restored”; various equipment,
including several vintage automobiles, shall be “held, maintained, and exhibited as the
beneficiary may desire”; Borel’s residence shall be restored and “used as a museum and
meeting facility”; and various personal property within the residence shall be restored,
including various antique furniture, four deer heads, two ducks, an albino blackbird, and
a restored gas pump.
The Trust also states: “If in the trustee[’]s sole opinion, which shall be final and
incontestable, the [District] cannot meet each and every of the above-described
conditions then” the Danville property shall instead be distributed to the City of San
Ramon, first, or to the Town of Danville, second, subject to the same terms and
conditions. If none of these beneficiaries take the Danville property, the trustee may
lease any or all of the property to them under such terms and conditions the trustee deems
appropriate. If the remaining trust property is not completely disposed of by the
preceding provisions, it shall be distributed to Borel’s heirs.
The Trust also includes a no contest clause, which provides in relevant part: “If
any beneficiary under this instrument . . . directly or indirectly contests this instrument,
any amendment to this instrument, . . . or the validity of any contract, agreement . . . ,
declaration of trust, beneficiary designation, or other document executed by the settlor or
3
executed by another for the benefit of the settlor that is part of the settlor’s integrated
estate plan . . . then the right of that person to take any interest given to him or her by this
instrument . . . shall be void, and any gift or other interest in the trust property to which
the beneficiary would otherwise have been entitled shall pass as if he or she had
predeceased the settlor without issue.”
B. The Option Agreement
On June 14, 2004, Borel and Corrie entered into a “Real Property Option and
Purchase Agreement” (the Option Agreement) pertaining to the Danville property. The
Option Agreement granted Corrie a five-year exclusive and irrevocable option to
purchase up to seven acres of the Danville property at a price of $500,000 per acre. In
return for the purchase option, Corrie was required to pay Borel a nonrefundable option
fee of $100,000 up front, plus another $5,000 per month during the option period. The
Option Agreement also gave Corrie a right of first refusal to purchase “the balance of the
[Danville property] that is not part of this Option Agreement.”
On March 25, 2009, Borel and Corrie amended the Option Agreement to
(1) extend the option period by one year to June 14, 2010; (2) increase the option fees
from $5,000 per month to $10,000 per month; and (3) give Corrie the option to extend the
option period to June 14, 2011, by payment of an additional $100,000 to Borel, which
would count toward the purchase price of the property if Corrie exercised the option
(Amendment No. 1). Corrie timely made the $100,000 payment required for extension of
the option period until June 14, 2011.
Borel died on April 19, 2009, and Flanagan became the successor trustee of the
Trust. On November 16, 2010, Flanagan and Corrie executed a document captioned
“Amendment #2 to Real Property Option and Purchase Agreement” (Amendment No. 2).
Amendment No. 2 extended the option period to June 14, 2013, in return for Corrie
making “advance principal payments” totaling $500,000 over the succeeding five
months, as well as continuing to pay monthly option fees, not applicable to the purchase
price, at the higher rate of $14,286 per month, instead of $10,000 per month, until the
option was exercised. Amendment No. 2 also gave Corrie an option to purchase “an
4
additional adjacent three acres” at $500,000 per acre, “thus bringing the total property
subject to an option to purchase to ten acres.” Further, Amendment No. 2 stated the
parties acknowledged their obligations were conditioned upon the approval and filing of a
final subdivision map or parcel map.
C. District’s Petition to Remove Trustee
In April 2011, Vasquez and the District filed separate petitions to remove
Flanagan as the successor trustee. The court subsequently ordered Flanagan to produce
various financial records. According to the District, these records showed Flanagan used
significant Trust funds for improper purposes. Among other things, the District asserted
Flanagan attempted to frustrate Borel’s plan for creating an agricultural park on the
Danville property and entered into Amendment No. 2 to the Option Agreement to obtain
funds for her own personal use.
In connection with the petition, the District filed with the probate court a
“Preliminary Concept Plan,” dated October 24, 2011, which detailed how the District
planned to establish an agricultural park on the Danville property in conformance with
the terms and conditions of the Trust. The concept plan states that, given the bequests,
liens, and encumbrances on the estate property, it is likely up to 10 acres of the Danville
property would be sold, generating up to $5 million, of which about $3 million would be
used to establish the agricultural park.
On December 8, 2011, before the petition could be adjudicated, Flanagan died.
Elizabeth Soloway was appointed as the second successor trustee. Soloway later filed her
accounting and report of Trust administration with the court, indicating Flanagan used
Trust funds to pay herself $232,219.64. Soloway’s accounting also identified an
additional $163,633.77 in “miscellaneous expenses” that were not Trust expenses.
D. Corrie’s Motion to Instruct and Prior Appeal
On November 22, 2011, Corrie filed a motion for an order instructing the trustee
to convey to him the seven acres of the Danville property subject to the Option
Agreement. The motion was made on the ground Corrie had contracted to sell his option
5
rights to a third party and that buyer’s due diligence inspection of the property and
determination to close must take place prior to December 31, 2011.
Soloway filed an objection to Corrie’s petition and requested a separate trial on the
issue of whether the Option Agreement was void for failing to condition sale of the
property on compliance with the Subdivision Map Act (Gov. Code, § 66410 et seq.). The
probate court decided to proceed on that basis and set a trial on “the bifurcated issue of
the defense of illegality.” Following briefing and argument, the probate court ruled the
Option Agreement was void and unenforceable at its inception due to noncompliance
with the Subdivision Map Act, and subsequent acts by the parties were ineffective to
revive its validity.
Corrie appealed and we reversed and remanded in an opinion dated May 16, 2013.
We concluded Amendment No. 2 cured the illegality of the original option agreement.
(Corrie v. Soloway (2013) 216 Cal. App. 4th 436, 449.) The District and Soloway had
argued Amendment No. 2 constituted a breach of trust that would deprive the District of
its bequest. (Id. at pp. 445–446.) We rejected the argument based on a lack evidence in
the record, stating our decision was “[w]ithout prejudice to the District’s position in any
further proceedings on this point.” (Id. at p. 446.)
E. District’s Section 17200 Petition
The subject of the first appeal now before us is the District’s petition for the
probate court to instruct the trustee, pursuant to section 17200. The original petition was
filed on September 10, 2013, and a new petition was filed on December 3, 2013. Among
other things, the new petition sought an order instructing and authorizing the trustee to
receive a loan of up to $800,000 from the District.
The District alleged an order authorizing the loan was necessary because the Trust
was nearly insolvent due to Flanagan’s malfeasance. According to the District, the Trust
lacked sufficient funds to service its debts, pay its estate and property taxes, and cover its
operational costs. The District had previously loaned the Trust $700,000 in July 2012,
and $99,958.90 in July 2013 for various expenses. The July 2012 loan was secured by a
third deed of trust against the Danville property, while the July 2013 loan was unsecured.
6
The District, in October 2013, also purchased a $1.4 million loan to the Trust from Savvy
Real Estate Capital (the Savvy loan). The Savvy loan was secured by the Danville
property and had gone into default.
In addition to demanding an order authorizing the loan, the District sought to
modify the Trust pursuant to the doctrine of cy près. Specifically, the District stated it
wished to receive the Danville property “without conditions to utilize the entire [parcel],”
explaining “the park as described in the Trust is no longer feasible given the changed
circumstances during the Trust administration.” Further, the District requested an order
instructing the Trustee to distribute an unrestricted and unconditional grant deed to the
Danville property. The District represented such a grant deed was necessary for the Trust
to take a charitable deduction on its estate tax return.
The Attorney General, who is tasked with regulating charitable trusts, filed a
response to the District’s section 17200 petition, stating the petition did not appear to
establish the need to modify the Trust through cy près. The Attorney General asserted
that, although the petition did not track the specific conditions contained in the Trust, it
did indicate an intention to establish an agricultural park. The Attorney General
concluded that if the court was inclined to grant the petition, the specific restrictions in
the Trust regarding the use of the property should be included in the court’s order.
On April 17, 2014, after a contested hearing on the matter, the probate court issued
an order granting the petition (the section 17200 order). The court found it need not
decide the applicability of the cy près doctrine, as the stated intent of the District did not
depart from Borel’s wishes. The trustee was instructed to receive an $800,000 loan from
the District, $300,000 of which was to be held in trust for the bequest to Vasquez. The
court also instructed the trustee to distribute the Danville property to the District by
unrestricted and unconditional grant deed. Appellants timely appealed the section 17200
order.
F. District’s Section 1310, Subdivision (b) Petition
The appeal of the section 17200 order stayed the order’s enforcement. The
District filed a petition pursuant to section 1310, subdivision (b) to lift the stay.
7
Section 1310, subdivision (b) allows a probate court to “direct the exercise of the powers
of the fiduciary” for the purpose of “preventing injury or loss to a person or property”
while an appeal is pending. The District requested the court direct the trustee to perform
the acts previously ordered in the section 17200 order. Absent such an order, the District
argued, there was a risk the Trust would default on its existing secured loans and place
the Danville property in imminent risk of foreclosure.
On May 20, 2014, after considering the evidence and holding a contested hearing,
the probate court issued an order granting the motion (the section 1310(b) order). The
court found the Trust was insolvent; due to the insolvency, the beneficiaries and
claimants of the trust would suffer harm unless additional revenue was obtained; and the
only source currently proposed for such revenue was from the District. The court also
found appellants were subject to no risk of harm if the loan was authorized, as the
District’s ownership interest in the Danville property was subject to Corrie’s option
rights, to the extent they were enforceable. On the other hand, appellants, Trust
beneficiaries and claimants, and the District would be subject to imminent risk of harm if
the proposed loan was not authorized. The court found that, without the loan: the Trust
could not maintain insurance on the property; the property could not be safely
maintained; an IRS tax lien of over $3.5 million would continue to accrue interest and
penalties; there was a risk of foreclosure due to past due loan balances; and the Trust
would be unable to take advantage of a negotiated reduction in legal fees that was
contingent upon timely payment.
Appellants timely appealed the section 1310(b) order.
G. Trial on Validity of Corrie’s Option Rights
The final appeal in this matter arises out of the trial on the validity of Corrie’s
option rights, which commenced on June 4, 2014. In their pretrial briefing, appellants
asserted the trial should be vacated because “there [wa]s no matter pending with respect
to the June 4 trial date.” The probate court rejected appellants’ arguments in a June 4,
2014 order. The court explained there were at least two petitions that may serve as the
basis for the pending trial: (1) Corrie’s November 22, 2011 petition for instructions,
8
which was the subject of our prior opinion in Corrie v. Soloway, supra, 216 Cal. App. 4th
436; and (2) Corrie’s “Petition for Instructions to Trustee re Right of First Refusal, filed
on January 30, 2014.” The probate court also rejected Corrie’s claim that the first
petition became moot, and found Corrie’s attempt to withdraw the petition was precluded
by Code of Civil Procedure section 581.
The trial proceeded as scheduled. On September 23, 2014, after an 11-day trial,
the probate court issued a detailed, 37-page statement of decision. The court once again
rejected appellants’ jurisdictional arguments, as well as their argument the District lacked
standing to object to the Option Agreement. The court also rejected appellants’
contention the District had violated the Trust’s no contest clause, finding the clause did
not encompass the Option Agreement, and in any event, the agreement did not constitute
a protected instrument within the meaning of the Probate Code.
Turning to the substance of the dispute, the probate court found the original
Option Agreement and Amendment No. 1 had expired, and Amendment No. 2 was void
and unenforceable since Flanagan acted without authority in entering into it. The court
explained: “[O]ne of Borel’s clear purposes . . . was to create an agricultural park, after
certain specified distributions of personal property were made. By purporting to convey
rights in the [Danville property] to Corrie in Amendment #2 on November 16, 2010,
more than [1.5] years after Borel’s death, Flanagan acted in excess of her express
authority. She did so in a manner inconsistent with the purpose of the trust and in
violation of her fiduciary duties owed to the beneficiaries.” The court also found that, “in
disregard of the interests of the beneficiaries, Corrie and Flanagan negotiated
Amendment #2 for their own personal purposes and gain.” (Fn. omitted.)
The court entered judgment in favor of the trustee and the District and against
appellants on October 17, 2014, and appellants timely appealed.
II. DISCUSSION
A. Section 17200 Order and Section 1310(b) Order
The probate court’s section 17200 order directed the trustee to distribute the
Danville property to the District via unconditional grant deed. It also directed the trustee
9
to receive an $800,000 loan from the District, which was to be secured by a deed of trust.
This order was stayed by appellants’ appeal, but that stay was effectively lifted when the
court issued the section 1310(b) order, and once again authorized the trustee to accept the
loan and deed the property. Because actions taken by the trustee pursuant to
section 1310, subdivision (b) are valid, irrespective of the outcome of an appeal, there is
no relief we can provide appellants in connection with their appeals of both the
section 1310(b) order and the section 17200 order.
“Probate Code section 1310, subdivision (a), provides that, subject to listed
exceptions, an appeal stays the operation of an order.” (Conservatorship of McElroy
(2002) 104 Cal. App. 4th 536, 555.) Section 1310, subdivision (b) provides for an
exception to the automatic appellate stay, permitting the probate court’s discretionary
retention of jurisdiction in limited circumstances, notwithstanding the pendency of an
appeal: “Notwithstanding that an appeal is taken from the judgment or order, for the
purpose of preventing injury or loss to a person or property, the trial court may direct the
exercise of the powers of the fiduciary, or may appoint a temporary guardian or
conservator of the person or estate, or both, or special administrator or temporary trustee,
to exercise the powers, from time to time, as if no appeal were pending. All acts of the
fiduciary pursuant to the directions of the court made under this subdivision are valid,
irrespective of the result of the appeal. An appeal of the directions made by the court
under this subdivision shall not stay these directions.” (§ 1310, subd. (b), italics added.)
The last sentence of section 1310, subdivision (b) appears to contemplate appeals
from orders made pursuant to the statute. However, the second to last sentence—which
states the acts of the fiduciary taken pursuant to section 1310, subdivision (b) are valid,
regardless of the outcome of appeal—indicates the relief that may be sought through such
appeals is limited. Thus, an appellate court may not reverse an order made pursuant to
section 1310, subdivision (b) to the extent doing so would disturb acts of the trustee taken
pursuant to statute. Moreover, where a section 1310, subdivision (b) order grants relief
identical to that of the underlying order on appeal, the statute effectively deprives an
appellant of his or her right to appeal altogether.
10
We recognize depriving a litigant of his or her right to appeal is an extraordinary
measure. But the Legislature appears to have determined that, in certain cases,
expeditious resolution of disputes is more important than allowing for a right of review.3
Our Supreme Court reached the same conclusion in Gold v. Superior Court (1970)
3 Cal. 3d 275, 281 (Gold), in which it considered a statute virtually identical to
section 1310, subdivision (b) that applied to guardianship and conservatorship
proceedings. That statute stated the trial court had jurisdiction to direct the exercise of
the powers of the conservator notwithstanding a pending appeal, but only for the purpose
of preventing injury or loss to person or property. (Gold, at p. 281.) Like section 1310,
subdivision (b), the statute also stated the acts of the conservator shall be valid,
irrespective of the results of an appeal. (Gold, at p. 281.) The court held the statutory
exception to the stay should be narrowly construed: “By specifically conditioning the
application of the statute upon the prevention of injury or loss to person or property the
Legislature has determined that the exception should be operative only in a limited class
of cases. . . . [T]he language of this statute strongly suggests that the exception applies
only to the exceptional case involving a risk of imminent injury or loss.” (Ibid.)
The Supreme Court explained such a construction was necessary because orders
issued pursuant to the statute may not be subject to appellate review: “Where . . . the trial
court’s order directs the very acts which constitutes the subject matter of the appeal, the
exception operates to effectively deprive the appellant of his appeal. By validating the
conservator’s acts ‘irrespective of the result of the appeal’ and notwithstanding the fact
that the appellant ultimately prevails, the Legislature has created an extraordinary
procedure. In essence, the Legislature appears to have determined that in some cases the
need for speedy disposition of certain matters outweighs the interest in affording the
affected parties a right of review.” (Gold, supra, 3 Cal.3d at p. 282, italics added; see
Kane v. Superior Court (1995) 37 Cal. App. 4th 1577, 1584–1586 [citing Gold and
adopting the same interpretation of a substantially similar statute].)
3
The legislative history of section1310 appears to be silent on this issue.
11
More recently, the Second Appellate District addressed the appealability of
section 1310, subdivision (b) orders in Sterling v. Sterling (2015) 242 Cal. App. 4th 185.
That case involved a dispute between Rochelle and Donald Sterling, the settlors and
cotrustees of a trust which owned the Los Angeles Clippers basketball team. (Id. at
p. 188.) After Donald made several racist remarks and the National Basketball
Association sought to terminate the Sterling’s ownership of the Clippers, Rochelle filed a
section 1310, subdivision (b) petition seeking a court order to confirm the sale of the
team for $2 billion. (Sterling, at pp. 190, 192.) The probate court granted the petition
over Donald’s objections. (Id. at pp. 192–193.) On appeal, Donald requested the court
reverse the probate court’s orders and direct the sale of the Clippers be undone. (Id. at
p. 195.) The court held Donald failed to show he was entitled to such relief since acts
taken pursuant to section 1310, subdivision (b) are valid regardless of the outcome on
appeal. (Sterling, at p. 195.) The court concluded: “[E]ven if Donald is successful, the
sale of the Clippers cannot be ‘undone’ and Donald seeks no other relief and
demonstrates no other prejudice.” (Ibid.) The court found this issue was dispositive, but
nevertheless went on to discuss Donald’s other arguments, including his contention there
was no imminent risk of injury or loss that justified authorizing the sale under
section 1310, subdivision (b). (Sterling, at pp. 195, 198–200.)
Likewise, in the instant action, appellants are essentially arguing we should
reverse the probate court’s section 1310(b) order and undo the District’s $800,000 loan to
the Trust, as well as the grant deed of the Danville property to the District. This we
cannot do. The trustee accepted the loan and deeded the property pursuant to the
section 1310(b) order, and thus the trustee’s acts are valid irrespective of the outcome on
appeal. And even if the probate court erred, there is no relief we can provide to
appellants in connection with their appeal of the section 1310(b) order. Nor is there any
relief we can provide appellants in connection with their appeal of the section 17200
order, as that order granted identical relief. Put another way, we cannot reverse the
section 17200 order without also invalidating the acts of the trustee taken pursuant to
section 1310, subdivision (b), which would be a direct violation of the statute. As this
12
issue is dispositive, we need not and do not consider appellants’ contentions that the
section 1310(b) order was unwarranted because there was not an extraordinary risk of
harm or loss. We also need not and do not consider appellants’ contentions that the
section 17200 order is inconsistent with the terms of the Trust and the probate court could
not modify the Trust’s terms through the doctrine of cy près.
In response to our request for supplemental briefing, appellants conceded the
actions taken by the trustee pursuant to the section 1310(b) order remain valid
notwithstanding the outcome of the appeal. They also appear to concede the trustee’s
actions in accepting the $800,000 loan cannot be undone, stating they no longer seek to
“ ‘roll back’ ” the loan. Notwithstanding these concessions, appellants maintain the
$800,000 loan authorized by the probate court is too large. They assert $300,000 of the
loan that was to be held in trust for beneficiary Vasquez should be returned immediately
because Vasquez is now deceased. However, as appellants concede, Vasquez’s death is
not reflected in the record. Accordingly, we cannot base our decision on that fact.
Appellants appear to contend an additional portion of the loan should also be paid back
immediately because it is unnecessary to avoid imminent harm. But it is entirely unclear
from the record how much of the loan the Trust has already spent, and the Trust cannot
pay down the loan with money it does not have.
Appellants assert there are other significant problems with the probate court’s
section 1310(b) and section 17200 orders which can be addressed on appeal without
invalidating the trustee’s actions. Specifically, they assert we should address the aspects
of the court’s orders authorizing the trustee to distribute the Danville property to the
District via unconditional grant deed. Their arguments on this point are not the model of
clarity. They assert that while section 1310, subdivision (b) validates the trustee’s
actions, the statute does not “have any impact on the actions of a non-trustee [(the
District)].” They further contend the District’s section 17200 and 1310, subdivision (b)
petitions amounted to an attack on the Trust and an attempt to frustrate the intent of
Borel, thereby triggering the Trust’s no contest provisions, and resulting in the District’s
forfeiture of its gift under the Trust.
13
Setting aside that the District’s actions did not trigger the no contest clause (see
section II.B.2., post), appellants’ arguments are unavailing. At bottom, appellants are
essentially asserting it was improper for the trustee to convey the Danville property to the
District, and the property should be returned to the Trust. Even if they are correct that the
probate court erred, pursuant to section 1310, subdivision (b), we cannot now invalidate
the actions of the trustee or otherwise undo the transaction. Appellants attempt to get
around section 1310, subdivision (b) by shifting the focus from the actions of the trustee
to those of the District, asserting the District’s actions ran afoul of the no contest clause.
But regardless of whether the District violated the no contest clause, we cannot reverse
the probate court’s orders without also invalidating the trustee’s actions in transferring
the property. Since a reversal cannot be squared with section 1310, subdivision (b), the
appeals of the section 1310(b) and section 17200 orders necessarily fail.4
In sum, we find there is no relief we can grant appellants in connection with their
appeals from the section 17200 order and the section 1310(b) order. Accordingly, those
appeals are dismissed.
B. Corrie’s Option
Appellants also appeal from the judgment entered on October 17, 2014. In the
statement of decision underlying the judgment, the probate court found that Flanagan, as
successor trustee, lacked the power to enter into Amendment No. 2 to the Option
Agreement on behalf of the Trust. To the extent Flanagan had the power to agree to
Amendment No. 2, the court also found the parties had failed to adequately identify the
property subject to the option, Corrie materially breached the agreement by failing to
make the required option payments, Corrie failed to properly exercise the option, and the
transfer of the property to the District did not trigger Corrie’s right of first refusal.
4
Though we need not reach the issue, we question appellants’ assertion the
District could not take the Danville property because it had no intention of creating the
agricultural park envisioned by Borel. Contrary to appellants’ contentions, the Trust
appears to express a general charitable intent. And since Flanagan’s actions as successor
trustee rendered the Trust insolvent, a modification of the Trust’s terms was warranted to
carry out Borel’s intent.
14
Appellants now argue (1) the probate court lacked jurisdiction to enter the statement of
decision and the resulting judgment, (2) the District violated the Trust’s no contest
clause, (3) the District lacked standing to contest Corrie’s option rights, and (4) the Trust
authorized Flanagan to enter into Amendment No. 2. We find these arguments
unavailing.5
1. The Probate Court Had Jurisdiction
Appellants argue the probate court lacked jurisdiction to proceed with a trial on
the validity of Corrie’s option rights, and thus also lacked jurisdiction to issue a statement
of decision and judgment on the issue. The probate court addressed and rejected most of
these arguments below. We agree with the probate court’s conclusion.
In pretrial briefing submitted shortly before the June 2014 trial date, Corrie argued
the court lacked jurisdiction to proceed because the issue of whether his option was valid
was moot. Corrie reasoned that, in his November 22, 2011 petition to instruct the trustee
to convey the property to him, he had emphasized time was of the essence because he had
a buyer ready to purchase the land. Corrie asserted the buyer had since withdrawn its
offer. Corrie also stated: “Should there be any doubt on the issue, by this pleading, Mr.
Corrie withdraws the Petition for Instructions filed on [sic] November 2011.”
The timing of Corrie’s mootness claim is suspect. He filed his first petition for
instructions on November 22, 2011, and claimed he needed to close the deal with his
buyer on or before January 15, 2012. The initial trial date for the petition was set for
March 2012, and the appeal of the initial order denying the petition was not resolved until
May 2013, 16 months after the purported closing date. Yet Corrie did not raise the issue
that his buyer was withdrawing until May 2014, on the eve of the second trial on the
validity of the option. Given that Corrie vigorously litigated his November 22, 2011
petition for over three years after the closing date with the buyer, his contention the
5
Appellants also take issue with the probate court’s other findings regarding the
identification of the property subject to the option agreement, the parties’ performance on
the contract, and Corrie’s right of first refusal. As we find Flanagan lacked the power to
enter into Amendment No. 2, we need not and do not reach these issues.
15
petition was filed solely for a “specific sale” to that buyer strains credulity. Moreover,
even if Corrie did not have an immediate interest in adjudicating the validity of his option
rights, the District did. By the time of the trial, the Danville property had already been
conveyed to the District via unconditional grant deed pursuant to the probate court’s
section 1310(b) order.
It is also questionable whether Corrie could voluntarily dismiss his November 22,
2011 petition without leave of the court. As the probate court held, a plaintiff may only
dismiss an action without leave “before the actual commencement of trial.” (Code Civ.
Proc., § 581, subd. (b)(1).) Here, the probate court found the trial in this matter
commenced in March 2012, when it held a hearing to determine the legality of the Option
Agreement. We reversed the probate court’s order on illegality and remanded for further
proceedings, which ultimately culminated in the June 2014 trial. The probate court held
the June 2014 trial was merely a continuation of the March 2012 hearing. There is some
support for the probate court’s holding in the case law. “The legal principles that have
evolved in this area tend to focus on the reasons for the dismissal and whether the
plaintiff acted in good faith or merely for tactical reasons.” (Tire Distributors, Inc. v.
Cobrae (2005) 132 Cal. App. 4th 538, 544.) Thus, courts have held: “Once the parties
commence putting forth the facts of their case before some sort of fact finder, such as an
arbitrator, or at the pretrial stage a ruling is made on an issue of law or on admitted facts
which effectively disposes of the plaintiff’s case against him, it is unfair—and perhaps a
mockery of the system—to allow the plaintiff to dismiss his complaint and refile.” (Gray
v. Superior Court (1997) 52 Cal. App. 4th 165, 173.) In this case, given the competing
claims to the Danville property, the validity of Corrie’s option rights needed to be
resolved at one point. The issue did not disappear merely because Corrie sought to
voluntarily dismiss his petition without prejudice.
Even if trial had not yet commenced, Corrie was estopped from withdrawing his
petition. On May 8, 2014, the parties stipulated the trial would proceed as planned
notwithstanding the appeal of the probate court’s order granting the District’s
section 17200 petition. Appellants now argue the May 8 stipulation was mooted by the
16
probate court’s section 1310(b) order. Not so. The validity of Corrie’s option remained a
live issue. While the section 1310(b) order conveyed the entirety of the Danville
property to the District, it also stated the District’s interest in the property was subject to
Corrie’s option rights, to the extent they were enforceable.
The probate court found another basis for holding the June 2014 trial was to
adjudicate Corrie’s second petition for instructions, which was filed January 30, 2014. In
that petition, Corrie asserted he had a right of first refusal to the subject property pursuant
to his Option Agreement. Like Corrie’s first petition for instructions, the January 30,
2014 petition raised the issue of the validity of the Option Agreement. Corrie now argues
the January 30, 2014 petition could not have been adjudicated at the June 2014 trial
because it was filed after the court set the June trial date at a hearing held on January 15,
2014. But on February 10, 2014, the probate court issued another order stating both
Corrie’s November 22, 2011 petition and his January 30, 2014 petition would be
adjudicated at the June trial.6 Thus, regardless of the original plan for the trial, the court
ultimately made it clear both petitions would be tried together. As Corrie attempted to
withdraw only one of his pending petitions, there was no reason to vacate the trial.
2. No Contest Clause Does Not Apply
The Trust’s no contest clause provides beneficiaries forfeit their right to take if
they directly or indirectly contest the Trust or any other part of Borel’s integrated estate
plan. Appellants contend the District mounted a direct contest and thus violated the no
contest clause by (1) seeking an unrestricted deed to the Danville property with no
requirement of creating the agricultural park as envisioned by Borel, and (2) by seeking
to invalidate Corrie’s option agreement. In the alternative, appellants argue the District’s
actions amounted to an indirect contest. While a no contest clause may no longer be
enforced against indirect contests under the current statutory scheme, appellants argue we
6
In its statement of decision, the probate court stated the hearing on the
January 30, 2014 petition was originally set for March 6, 2014, but was later continued to
be heard at the trial scheduled to commence in June 2014. Either way, the probate court
intended to try Corrie’s petitions together.
17
should apply the former scheme, which did recognize indirect challenges, pursuant to the
so-called “fairness exception.” We find appellants’ arguments on both points unavailing.
a. District Did Not Bring a Direct Contest Under Current Law
Under the current statutory scheme, a no contest clause may only be enforced
against the following types of contests: (1) “[a] direct contest that is brought without
probable cause”; (2) “[a] pleading to challenge a transfer of property on the grounds that
it was not the transferor’s property at the time of the transfer”; and (3) “[t]he filing of a
creditor’s claim or prosecution of an action based on it.” (§ 21311, subd. (a).) The
second and third categories clearly do not apply here. Accordingly, the pertinent
question is whether the District brought a direct contest without probable cause. We
conclude it did not.
As an initial matter, the District did not bring a direct contest. The Probate Code
defines that term as a contest alleging the invalidity of a protected instrument based on
one or more of the following grounds: forgery; lack of due execution; lack of capacity,
menace, duress, fraud, or undue influence; revocation of the will, trust, or instrument; or
disqualification of a beneficiary. (§ 21310, subd. (b).) The District’s section 17200
petition alleged nothing of the sort. It merely sought an order directing the trustee to
accept a loan and convey the Danville property to the District. It also requested
modification of certain requirements concerning the creation of the agricultural park due
to changed circumstances. The District’s section 1310, subdivision (b) petition
essentially sought identical relief.
Appellants assert the District mounted a direct contest to section 6.8 of the Trust,
which sets forth the general powers of the trustee, by arguing Flanagan, as successor
trustee, lacked the power to enter into Amendment No. 2 to the Option Agreement. The
argument is meritless. Appellants cite to nothing in the record suggesting the District
tried to invalidate section 6.8. In any event, there is an obvious and significant distinction
between arguing section 6.8 is invalid and arguing that section 6.8 did not authorize
Flanagan to agree to Amendment No. 2 on behalf of the Trust. Under appellants’ logic,
18
the no contest clause also bars Cleland and Arbios from taking anything as they are
challenging the Trustee’s authority to distribute the Danville property to the District.
Appellants also assert the District mounted a direct challenge by trying to
invalidate the Option Agreement and its amendments. We disagree. Direct contests are
limited to challenges of “protected instruments.” (§ 21310, subd. (b).) A protected
instrument is an “instrument that contains the no contest clause” or an “instrument that is
in existence on the date that the instrument containing the no contest clause is executed
and is expressly identified in the no contest clause, either individually or as part of an
identifiable class of instruments, as being governed by the no contest clause.” (§ 21310,
subd. (e)(1)–(2). The Option Agreement and its amendments do not contain no contest
clauses, nor are they expressly mentioned in the Trust. Indeed, Amendment No. 1 to the
Option Agreement was signed after Trust was executed, and Amendment No. 2 was
signed after Borel’s death.
Nevertheless, appellants argue the Option Agreement is a “critical part” of Borel’s
integrated estate plan, and thus any attempt to invalidate constitutes a direct contest. In
support they rely on Genger v. Delsol (1997) 56 Cal. App. 4th 1410 (Genger) and Burch v.
George (1994) 7 Cal. 4th 246 (Burch). Both cases were decided before the Legislature
amended the Probate Code to greatly restrict the reach of no contest clauses. (Bradley v.
Gilbert (2009) 172 Cal. App. 4th 1058, 1069.) Moreover, a legislative report drafted in
connection with the 2001 amendments to the Probate Code cited Genger and Burch as
cases in which no contest clauses had been applied overbroadly and inconsistently by the
courts. (Bradley v. Gilbert, at pp. 1069–1070.)
To the extent Genger and Burch remain good law, they are distinguishable. In
Genger, the court held a challenge to a stock redemption agreement should be treated as
contest of the trust since the agreement was the cornerstone of the decedent’s integrated
estate plan. (Genger, supra, 56 Cal.App.4th at pp. 1421–1422.) Unlike here, the trust
expressly referenced the stock redemption agreement. (Id. at p. 1417.) In Burch, a
surviving spouse brought a petition to determine whether she could, without violating a
no contest clause, litigate her rights to certain assets in her deceased husband’s trust
19
estate under the community property laws and ERISA.7 (Burch, supra, 7 Cal.4th at
p. 251.) The court held the proposed litigation would violate the no contest clause.
(Ibid.) If successful, the proposed litigation would have thwarted the trust provision
providing for the allocation of all assets placed in the trust estate to subsidiary trusts, and
result in the nullification of the husband’s intent that the wife be put to an election of her
independent rights to all property transferred to the trust. (Id. at p. 261.) In contrast, in
the instant action, the Trust does not provide for the distribution of any assets to Corrie.
To the contrary, the Trust provides the real property subject to Corrie’s Option
Agreement is to be distributed to the District.
Even if the District’s challenge to Corrie’s rights under the Option Agreement
amounted to a direct contest (it does not), it was brought with probable cause.
“[P]robable cause exists if, at the time of filing a contest, the facts known to the
contestant would cause a reasonable person to believe that there is a reasonable
likelihood that the requested relief will be granted after an opportunity for further
investigation or discovery.” (§ 21311, subd. (b).) Such is the case here. In Corrie’s prior
appeal, we found he never exercised his rights under the original Option Agreement or
the first amendment to it. (Corrie v. Soloway, supra, 216 Cal.App.4th at p. 450.)
Moreover, the probate court found Amendment No. 2 to the Option Agreement was
invalid. As set forth below, we conclude the probate court’s decision is well founded.
b. Fairness Exception Does Not Apply
The current statutory scheme governing no contest clauses applies retroactively.
The latest amendments to the scheme became effective on January 1, 2010, but they
“appl[y] to any instrument, wherever executed, that became irrevocable on or after
January 1, 2001.” (§ 21315, subd. (a).) Pursuant to section 3, subdivision (h), a party
may qualify for a fairness exception to the presumptive retroactive applicability of the
current law “if application of the former law would compel a different conclusion as to
7
The Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et
seq.; ERISA).
20
enforceability of a no contest clause and it is established that the trustor(s) of the trust
instrument drafted the no contest clause in reliance on the former law.” (Donkin v.
Donkin (2013) 58 Cal. 4th 412, 416.) However, “In most cases there will be no difference
in result between the former law and the current law.” (Id. at p. 433.)
In the instant action, there does not appear to be any dispute Borel relied on the
former law in drafting the Trust’s no contest clause. He executed the Trust shortly before
the relevant amendments to the Probate Code were enacted by the Legislature. Thus, the
pertinent question is whether the former law would produce a different result as to the
enforceability of the no contest clause in this case. We conclude it would not.
Unlike the current statutory scheme, the former law allowed for the enforcement
of a no contest clause against an “indirect contest.” (Former §§ 21300, subd. (c), 21303.)
An indirect contest was defined as “pleading in a proceeding in any court that indirectly
challenges the validity of an instrument or one or more of its terms based on” any ground
that does not constitute a direct contest.8 (Former § 21300, subd. (c).) Although the
definition of an indirect contest was quite broad, the former law also identified a number
of proceedings that did not violate a no contest clause as a matter of public policy.
(Former § 21305, subd. (b).) Those proceedings included a pleading challenging the
exercise of a fiduciary power (former § 21305, subd. (b)(6)), a pleading regarding the
interpretation of the instrument containing the no contest clause or an instrument
expressly identified in the no contest clause (former § 21305, subd. (b)(9)), and a
pleading regarding the reformation of an instrument to carry out the intention of the
person creating the instrument (former § 21305, subd. (b)(11)).
In this case, the section 17200 petition stated the District intended to carry out
Borel’s intent of creating an agricultural park, but desired to modify some of the specific
8
The grounds for bringing a direct contest under the former law were substantially
similar to the grounds set forth in the current law. (Compare § 21310, subd. (b) and
former § 21300, subd. (b).) They included: revocation, lack of capacity, fraud,
misrepresentation, menace, duress, undue influence, mistake, lack of due execution, and
forgery. (Former § 21300, subd. (b).)
21
conditions relating to the park due to the Trust’s precarious financial situation.
Accordingly, the section 17200 petition falls squarely under former section 21305,
subdivision (b)(11), which exempts pleadings regarding reformation of instruments to
carry out the intent of the settlor. Appellants contend this exception does not apply
because the “sweeping” changes proposed in the petition actually thwarted Borel’s intent.
Appellants overstate the scope of the proposed modification. The section 17200 petition
states that, even with the proposed modification, the District still intends to “establish an
agricultural park and a related museum/public meeting space in a manner consistent with
the Conceptual Plan . . . as may be feasible.” The conceptual plan states that, consistent
with the terms of the Trust, all permanent structures on the property will be retained,
maintained, and restored; historic vehicles and farm equipment will be kept on display;
and Borel’s former residence will be refurbished and converted into a museum and
meeting facility.
3. The District Has Standing
Next, appellants argue the probate court erred in finding the District had standing
to contest Corrie’s petition to enforce his option rights. We disagree. As the probate
court held, a trust beneficiary has standing to sue third parties who, among other things,
induce a trustee to commit a breach of trust. (City of Atascadero v. Merrill Lynch,
Pierce, Fenner & Smith, Inc. (1998) 68 Cal. App. 4th 445, 462 (City of Atascadero).)
Such is the case here. The District challenged Corrie’s petition on the grounds Flanagan
breached her fiduciary duty as successor trustee by, among other things, entering into
Amendment No. 2 with Corrie to obtain funds for her own personal use.
Relying on City of Atascadero, appellants now contend the District could only
challenge Corrie’s option rights by bringing some kind of affirmative tort claim. The
argument is unavailing. In City of Atascadero, the court held that a beneficiary of a
statutory trust investment had standing to sue a financial broker that had managed the
trust’s assets. (City of Atascadero, supra, 68 Cal.App.4th at pp. 451–458.) The court
reasoned: “[I]t is well established that where a trustee has committed a breach of trust,
the trust beneficiaries may prosecute an action against third persons who, for their own
22
financial gain or advantage, induced the trustee to commit the breach of trust; actively
participated with, aided or abetted the trustee in that breach; or received and retained trust
property from the trustee in knowing breach of trust.” (Id. at p. 462.) While City of
Atascadero involved a claim for breach of fiduciary duty, at no point did the court
suggest a beneficiary’s standing was contingent on whether it brought an affirmative tort
claim.9
The District also had standing to challenge the Option Agreement because,
pursuant to the section 1310(b) order, the trustee distributed the property to the District
via unconditional grand deed. As the District owned the Danville property, it had
standing to contest Corrie’s claim to that property. Appellants argue the grant deed
cannot serve as a basis for standing because their appeal of the section 1310(b) order was
pending when the trial on the validity of the Option Agreement commenced. But as
discussed at length above, actions taken by the trustee pursuant to the section 1310(b)
order are valid, regardless of the outcome on appeal. Accordingly, the appeal of the
section 1310(b) order had no effect on the District’s interest in the Danville property.
4. Flanagan Was Not Authorized to Enter into Amendment No. 2
The probate court found the original Option Agreement and Amendment No. 1 to
that agreement had expired, and therefore neither could provide a basis for Corrie’s claim
to enforce an option against the Danville property. The court also found Flanagan, as
successor trustee, lacked the authority to enter into Amendment No. 2 to the Option
Agreement. While the court conceded the Trust granted general powers to the successor
trustee, it found those powers were subject to various limitations which precluded the
trustee from entering into Amendment No. 2 with Corrie. The court reasoned
9
Appellants also argue District lacked standing because they violated the Trust’s
no contest clause. In a related argument, they contend the pending appeals of the section
17200 and 1310 orders stayed the probate court’s power to determine the District had not
violated the Trust’s no contest provisions. As discussed in section II.B.2., ante, the
District’s actions did not trigger the no contest clause. Moreover, appellants waived their
jurisdictional argument when they stipulated the June trial should proceed
notwithstanding their appeal of the section 17200 order.
23
Amendment No. 2 was inconsistent with Borel’s general intent of creating an agricultural
park on the Danville property and impaired the vested interests of the beneficiaries in the
property.
Appellants argue the probate court expressed an “unduly restrictive” view of the
successor trustee’s powers, and section 6.8 of the Trust authorized Flanagan to agree to
Amendment No. 2. Section 6.8 states the trustee may exercise various powers in order
“[t]o carry out the purposes of the trust . . . , and subject to any limitations stated
elsewhere in this instrument.” Those powers included the authority to “convey,
exchange, partition, and divide trust property,” as well as the authority to “grant options
for the sale or exchange of trust property for any purpose.” According to appellants,
execution of Amendment No. 2 was consistent with the purposes of the Trust, as it
allowed the Trust to remain solvent. Appellants further argue Borel contemplated using
the proceeds from the Option Agreement in this manner, as section 5.3 of the Trust states
the successor trustee is to pay the estate’s death taxes, debts, and expenses.
We are not persuaded. While section 6.8 of the Trust grants the trustee the general
power to enter into option agreements, it also states that power may only be used to
“carry out the purposes of the trust” and is “subject to any limitations stated elsewhere”
in the Trust.10 As the probate court found, extending Corrie’s option to purchase a
portion of the Danville property after Borel’s death was inconsistent with the purpose of
the Trust. Pursuant to sections 3.1 and 5.4 of the Trust, upon Borel’s death, the
beneficiaries’ rights were to vest and the Trust was to become irrevocable and not subject
to amendment. Upon Borel’s death, the trustee was also to distribute the Danville
property to the District. Extending Corrie’s option to purchase a portion of the Danville
10
It is also questionable whether the Trust even grants a successor trustee the right
to enter into option agreements. Section 6.8 of the Trust describes the general powers of
the “trustee,” not the successor trustee. Pursuant to section 6.3, references to the trustee
“shall be deemed a reference to whoever is serving as trustee or cotrustees, and shall
include alternate or successor trustees or cotrustees, unless the context requires
otherwise.” (Italics added.)
24
property after Borel’s death simply was not compatible with the Trust’s directive that the
District take the property upon Borel’s death.
Appellants also argue the probate court’s interpretation of the Trust is inconsistent
with our earlier opinion in Corrie v. Soloway, supra, 216 Cal. App. 4th 436. The primary
issue in that opinion was whether Amendment No. 2 cured the original Option
Agreement’s noncompliance with the Subdivision Map Act. (Corrie v. Soloway, at
p. 443.) We concluded that it did. (Ibid.) In their appellate briefing, the District had also
argued we did not need to consider the potential curative effect of Amendment No. 2
because the amendment was void as a matter of trust law. (Id. at p. 445.) The District
contended an indemnity clause in Amendment No. 2—through which Corrie promised to
indemnify the Trust—showed Corrie was aware Amendment No. 2 constituted a breach
of trust that would deprive the District of its bequest. (Id. at pp. 445–446.) We
disagreed, finding the indemnity clause was not an admission of fault or liability. (Id. at
p. 446.) We added: “[T]he Borel Trust specifically confers broad powers on the
successor trustee, including the power to grant options for the sale or exchange of trust
property for any purpose, with or without prior court authorization. It is not clear why
Corrie was required to ignore that express power.” (Ibid.)
Appellants now seize on our statement that the Trust conferred broad power on the
trustee. But this language is dicta, as we ultimately declined to rule on the District’s
argument that Flanagan was not authorized to enter into Amendment No. 2. Specifically,
we stated: “Without prejudice to the District’s position in any further proceedings on this
point, there is no basis in the present record for this court to decide the breach of trust
issue in favor of the District on this appeal.” (Corrie v. Soloway, supra, 216 Cal.App.4th
at p. 446.) Thus, our opinion in the prior appeal left the door open for the District to
further develop its argument concerning Flanagan’s authority to enter into the agreement.
The District has done so, and we are now convinced Flanagan’s actions were contrary to
the terms of the Trust.
Even if appellants’ interpretation of the Trust is correct, the probate court also
found “Corrie and Flanagan negotiated Amendment #2 for their own personal purposes
25
and gain” and “in disregard of the interests of the beneficiaries.” The court explained:
“The negotiations pertaining to Amendment #2 were never disclosed to the beneficiaries,
either before or after its execution. Similarly, the unenforceability of the Original Option
or Amendment #1 was never made known to the beneficiaries. . . . To similar effect,
neither the signing of Amendment #2 nor a copy of that agreement, was disclosed to the
beneficiaries until Corrie sought to enforce his purported option rights at the end of 2011.
[¶] . . . The Court finds that this failure to disclose their intent to enter into
Amendment #2 or seek judicial approval of this agreement was intentional.” (Fn.
omitted.)
Appellants suggest there was no reason for Corrie to be concerned about
Flanagan’s failure to provide notice. They reason “Corrie was not the Trustee and didn’t
know, or care, whether the Trustee gave notice to any of the beneficiaries.” Appellants
also argue Flanagan’s failure to provide notice was not significant because successor
trustee Soloway also failed to provide notice when she later declared Corrie in default of
the Option Agreement. The probate court addressed the first concern in its statement of
decision, finding Corrie had filed petitions to instruct the trustee as to other matters, but
not in connection with Amendment No. 2. Further, Flanagan’s decision to sell off Trust
property was of far greater consequence than Soloway’s decision to notify Corrie of a
default after he failed to make the required option payments. In any event, appellants do
not appear to contest the court’s factual finding that Flanagan entered into Amendment
No. 2 for her own personal gain, and they have pointed to no evidence that would
undermine the court’s finding.
Accordingly, we conclude the probate court correctly found Flanagan lacked
authority to enter into Amendment No. 2 and breached her fiduciary duty by doing so.
Because the original Option Agreement and Amendment No. 1 had expired, Corrie had
no right to any portion of the Danville property.
III. DISPOSITION
The appeals from the section 17200 order (case No. A141625) and the
section 1310(b) order (case No. A142154) are dismissed, as there is no relief we can
26
grant appellants in connection with those appeals. As to the appeal from the judgment on
the validity of the option (case No. A143688), we affirm. Costs are awarded to the
District.
_________________________
Margulies, J.
We concur:
_________________________
Humes, P.J.
_________________________
Dondero, J.
A141625, A142154, A143688
27
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. John Hideki Sugiyama
Counsel:
Gagen, McCoy, McMahon, Koss, Markowitz & Raines, Gregory L. McCoy and Lauren
E. Dodge for Plaintiffs and Appellants.
Wendel, Rosen, Black & Dean LLP, David Goldman and Thiele R. Dunaway for
Defendant and Respondent.
28