Blech v. Blech

Filed 8/6/18
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
RAYMOND BLECH, B268326
Objector and Appellant, (Los Angeles County
Super. Ct. No. BP135753)
v.
RICHARD BLECH et al.,
Objectors and Respondents;
COMERICA BANK, as Trustee, etc.,
Respondent.
APPEALS from orders of the Superior Court of Los Angeles
County, Lesley C. Green, Judge. Affirmed in part and dismissed
in part.
* Pursuant to California Rules of Court, rules 8.1105 and
8.1110, this opinion is certified for publication with the exception
of sections I, II, III, IV, V, VII and VIII of the Discussion.
Keystone Law Group, Shawn S. Kerendian and Lindsey F.
Munyer; Law Offices of James A. Bush and James A. Bush for
Objector and Appellant Raymond Blech.
Adam L. Streltzer for Objector and Respondent Richard
Blech.
Wolf, Rifkin, Shapiro, Shulman & Rabkin and
Christopher J. Heck for Objectors and Respondents Robert Bleck
and Linda Sue Grear.
Buchalter, Robert M. Dato, Robert S. Addison, Jr., and
Stuart A. Simon for Respondent Comerica Bank, as Trustee, etc.
_________________________
Arthur Blech died in 2011, leaving an estate worth in
excess of $65 million. At his death, his estate planning
documents included the Arthur Blech Living Trust, as amended,
and his will, which provided for the “pour over” of most of his
remaining assets into the Trust, to be administered as part of the
corpus of the Trust by a third party trustee. Arthur left most of
his estate in unequal shares to his four children, Raymond,
Richard, Robert and Jenifer. 1 The current successor trustee is
respondent Comerica Bank.
1 For clarity, we refer to family members by their first
names; we mean no disrespect. We also note Robert spells his
surname “Bleck” and Jenifer is also known as Jenifer Rush and
as Linda Sue Grear.
2
The issues presented in this appeal relate to how to account
for the sale of the 3,050-acre Blech Ranch (the Ranch or the Blech
Ranch), located in San Luis Obispo County, California. When the
Trustee filed a petition for approval of its first accounting in
October 2014, Raymond objected to the allocation, principally on
the basis that all of the capital gains tax (income tax) on the sale
was allocated to his share. The probate court bifurcated that
issue from other objections to this petition and, after a hearing,
determined that allocation to be appropriate. Thereafter, with
the exceptions we consider on this appeal, the Blech Children
resolved their differences, entered into separate settlement
agreements with the Trustee and stipulated that the court could
enter an order approving the Trustee’s first accounting.
Raymond has filed four separate appeals from the probate
court’s rulings. In the unpublished portions of this opinion, we
resolve which of those appeals is viable and other procedural
issues; also confirming the award of attorney fees to three of the
Blech Children. In the published portion of this opinion we
determine that the gift of the Blech Ranch (and of its equivalent
in cash as of the date of its sale) was a funding mechanism for
Raymond’s 35% share of the remainder or residue of the estate
rather than an additional specific gift to him.
When we reference the children as a group, we use the
terms “Blech Children” or “the siblings.”
3
FACTUAL AND PROCEDURAL HISTORY 2
Arthur executed the Arthur Blech Living Trust (the Trust)
in 2009, designating himself its initial trustee. At the same time,
he executed a will in which he made certain specific bequests,
and provided for the “pour over” of the balance of his estate into
the Trust. In 2010, he amended article 5.4 of the Trust, adjusting
the share for his son Robert to reflect a loan made to him. Arthur
died on January 13, 2011. Following the declination by the
2 During the pendency of this appeal, on March 2, 2018,
Raymond filed a request for judicial notice pursuant to Evidence
Code sections 452, 454 and 459, or in lieu thereof, a request that
we take additional evidence as permitted by Code of Civil
Procedure section 909, seeking to have this court take judicial
notice of the contents of the reporter’s transcript of proceedings in
the probate court which occurred on January 10, 2018, and of a
declaration of William Buckley, a senior vice president of the
Trustee. Respondents filed oppositions to these requests.
These requests are denied for the following reasons. In
reviewing the correctness of the probate court’s determination,
we consider only those matters that were part of the record at the
time an order or judgment was entered (with limited exceptions,
none of which is present). (Reserve Insurance Co. v. Pisciotta
(1982) 30 Cal. 3d 800, 813; see also In re Zeth S. (2003) 31 Cal. 4th
396, 407-410, 413 [it is generally inappropriate for an appellate
court to look to matters not before the trial court at the time it
made its rulings].) Nor has Raymond suggested there are
circumstances which qualify as “exceptional” to warrant taking
evidence pursuant to Code of Civil Procedure section 909. (Cf.
Reserve, at p. 813; In re Conservatorship of Hart (1991) 228
Cal. App. 3d 1244, 1257.) Also, in its opposition, the Trustee
advised us that the Buckley declaration was rejected by the
probate court, an action which Raymond does not dispute. As
this declaration was never admitted by the trial court, it would
not qualify for judicial notice in any event.
4
originally named successor trustee to serve, first, Union Bank,
N.A., and then Comerica Bank (the Trustee), served as successor
trustee.
Article 5 of the Trust set out the terms of administration
and distribution of Arthur’s assets on his death, providing for:
distribution of his personal effects in article 5.2, and the making
of specific distributions of cash to Robert, Richard and Jenifer
and other named individuals, and of a gift of a specified parcel of
real property to Raymond, in article 5.3. Article 5.4 provided for
distribution of the remainder of the trust estate as follows:
25 percent to Robert, 15 percent to Jenifer, 25 percent to Richard,
and 35 percent to Raymond, provided that Raymond’s share
“shall include any interest that [Arthur] . . . owns in the ranch [in
San Luis Obispo County].” 3 Article 5.5 provided for payment of
income and estate taxes as follows: “All estate taxes payable by
this Trust shall be paid by the beneficiaries listed in Paragraph
5.4 above in direct proportion to their respective percentage
shares. Income taxes payable by any subtrust shall be paid by
the beneficiary of such subtrust.” Article 5.7 provided that the
gifts made in article 5.4 would be distributed to the Blech
Children in fractional interests over a 10-year period.
In late 2013, Raymond negotiated the sale of the Ranch for
$14 million, signing an agreement for its sale in December 2013.
3 Raymond was designated manager of the Ranch in its
Operating Agreement. He had lived for many years on an
adjacent parcel in the house located on 78 acres of land which
was also left to him in article 5.3 of the Trust.
Jenifer’s share included a provision similar to that for
Raymond, referencing a certain residence in Montana if the Trust
then owned it.
5
The sale price represented a gain over the estate tax basis for the
Ranch of approximately $6.8 million. 4
Prior to presenting the sale to the probate court for
approval, the Trustee distributed to the Blech Children a
financial analysis (the spreadsheet) which contained estimated
allocations of assets in the trust estate to each beneficiary
pursuant to the terms of the Trust, also allocating estimated
expenses chargeable to each sibling, as well as net distributable
amounts to each. The second line of the spreadsheet contained
the following: “For Discussion Purposes – Not Final Calculations
and May Not Be Relied Upon for Any Purposes.”
On February 13, 2014, the probate court approved the sale,
which closed on March 25, 2014. The income tax on the sale was
charged against Raymond’s share.
The Blech Children became engaged in numerous intra-
family disputes, including those concerning allegations of
mismanagement of a 19-story office tower owned by the Trust;
allegations that two of the siblings had received improper
distributions; and allegations of improper actions by Raymond
acting as executor of the will. These disputes led to lawsuits
among the Blech Children; by the then-trustee (Union Bank)
against certain of the Blech Children; the filing by Robert and
Jenifer of a petition for suspension of Raymond’s powers and his
removal as executor; the filing of objections to Raymond’s First
Account of Executor; and the filing by Raymond of a Petition for
Contractual Indemnity and other relief arising out of his actions
as executor. The Blech Children reached a tentative settlement
4 The income tax on this sale was estimated at 33 percent of
the gain, or approximately $2,376,000.
6
of their disputes over Raymond’s work as executor of the will six
days prior to a July 2014 court hearing on that matter. That
settlement was memorialized in a Settlement Agreement and
Release, executed as of August 27, 2014 (the 2014 Settlement
Agreement), in which the Blech Children agreed upon mutual
releases of all claims, known or unknown, specifically referencing
and waiving their rights under Civil Code section 1542,
reserving, however, their individual rights to pursue certain
claims (e.g., the right to dispute expenses of administration of the
estate and trust arising on and after August 1, 2014, or not paid
prior to that date). 5
Paragraph 15 of the 2014 Settlement Agreement specifies
that each of the Blech Children “takes complete responsibility for
any tax liability which may arise from that party’s receipt of any
consideration, asset . . . or any other form of monetary or
nonmonetary value received under this Agreement or in
connection herewith, including from the Estate, the Trust, any
asset of the Estate or Trust . . . [or] Blech Ranch Company, LLC
. . . . Each party agrees that any tax liability, whether local,
state, federal or other, arising from such receipt by or to that
party . . . including but not limited to property taxes,
reassessment penalties, gift taxes, income taxes, or estate taxes,
shall be that party’s sole responsibility.”
5 This 2014 Settlement Agreement, among the Blech
Children only, is to be distinguished from two settlement
agreements, among different groups of the Blech Children and
the Trustee, and which we describe and reference, post, as the
2015 Settlement Agreements.
7
The Trustee filed its First Account and Report of Trustee
and Petition for Approval Thereof; Petition for Allowance of
Extraordinary Trustee’s Fees (the Petition) on October 29, 2014.
The probate court granted an extension of time in which to file
objections to the Petition, setting the deadline to do so at
January 15, 2015. On that date, Raymond filed a set of
objections, as did Robert and Jenifer. Following the Trustee’s
filing of responses to his objections, on May 19, 2015, Raymond
filed a Supplement to Objections (Supplemental Objections) in
which he raised for the first time the objection that the gift of the
Ranch to him had been improperly characterized as a specific gift
when, in his view, it should be characterized as a residuary gift.
If characterized as a residuary gift, Raymond argued, the
“expenses and costs of such gifts should be borne by the Trust as
a whole.” 6
At the June 11, 2015 trial setting conference on the
Petition, and with the consent of the parties, the probate court
bifurcated Raymond’s Supplemental Objections, setting them for
determination in advance of hearing the parties’ other objections
to the Petition.
At the conclusion of the hearing on the Supplemental
Objections on July 13, 2015, the probate court affirmed the
Trustee’s deduction of the income tax and other expenses
attributable to the Ranch from the proceeds of the sale and from
6 Thus, the $2.3 million in income tax on the sale of the
Ranch (see fn. 4, ante) would have been shared among all of the
Blech Children, rather than being paid from Raymond’s
inheritance alone.
On April 6, 2015, Raymond’s counsel had written a letter to
the Trustee’s counsel in which he raised the same argument.
8
Raymond’s share of the inheritance, rejecting Raymond’s
contrary claims, and specifically finding that the Trustee’s
actions “satisfied the intent of the Trustor, Arthur Blech.” 7 The
probate court also ruled Raymond had “consented to and affirmed
[the Trustee’s] treatment of the Blech Ranch gift [pursuant to
Probate Code section 16465], and the other Beneficiaries relied
upon Raymond’s actions, and Raymond is thus estopped from
now challenging that treatment.” In addition, it ruled Raymond
had released the specific objections made in his Supplemental
Objections by signing the 2014 Settlement Agreement. The
probate court filed an Order Overruling Raymond Blech’s
Supplement to Objections to Trustee’s First Account and Report
on August 19, 2015 (August 19, 2015 Order) setting out these
determinations. Notice of entry of that order was given on
September 10, 2015.
Two months later, on September 28, 2015, Robert and
Jenifer sought to enforce the 2014 Settlement Agreement by
filing their Motion to Enter Judgment on Settlement Agreement,
Enforce Settlement Agreement, and for Attorneys’ Fees and
Costs. The probate court considered this motion to be
“premature,” and, on October 30, 2015, placed it off calendar.
Seeking to overturn the August 19, 2015 Order, Raymond
filed a motion for new trial and a motion to vacate. The probate
7 The probate court stated it was relying in part on articles
5.5 and 5.6 of the Trust and Probate Code sections 21117, 21118,
and 16374, subdivision (a).
The court also stated both that “[Arthur] included [the
Ranch] in the part [i.e., article 5.4(b) of the Trust] that says that
Raymond will get 35 percent” and that the gift of the Ranch was
not a residuary gift. As we discuss, post, these statements are
contradictory and the latter is an error of law.
9
court denied these motions on October 30, 2015, noting no
judgment had been entered and the orders made in August
following the trial on the bifurcated issue were not separately
appealable.
During the late summer and fall of 2015, the parties had
negotiated and reached agreements to resolve all of the objections
to the Petition except for Raymond’s Supplemental Objections.
They set out their settlements in two agreements, one among the
Blech Children other than Raymond and the Trustee, and
another between Raymond and the Trustee. (These documents
are collectively referred to as the 2015 Settlement Agreements.)
In the latter agreement, Raymond reserved his right to appeal
the probate court’s August 19, 2015 Order. With the 2015
Settlement Agreements signed, the Blech Children stipulated to
have the probate court enter an order approving the Petition
based on those agreements, also preserving Raymond’s
Supplemental Objections for appeal. The probate court filed its
Order Granting Stipulated Ex Parte Application for Entry of
Order Approving Settlement of Trustee’s First Account on
October 23, 2015 (October 23, 2015 Order). 8
8 We have considered – and reject – the argument that the
October 23, 2015 Order left unresolved Raymond’s Supplemental
Objections. As we read this Order in the context of the
proceedings that had taken place in the probate court up to
October 23, 2015, the Order signed and filed that date fully
resolved in the probate court all of the issues between the parties
with respect to the Petition. Thus, the October 23, 2015 Order
was a final order with respect to the Petition, and the proper
subject for an appeal. (See Discussion, Section I, post.) The
probate court judge had the same understanding of this Order
when the issue was discussed on October 30, 2015.
10
On October 30, 2015, the probate court denied Raymond’s
motions for new trial and to vacate its rulings on his
Supplemental Objections and took off calendar Robert and
Jenifer’s motion to enforce the 2014 Settlement Agreement.
On November 6, 2015, Robert and Jenifer renewed their
motion to enter judgment on the 2014 Settlement Agreement and
for attorney fees. Also on that date, Raymond renewed his
motion for new trial and his motion to vacate.
The motion for new trial and motion to vacate were heard
and submitted on December 4, 2015; the probate court’s ruling on
these matters was issued on December 29, 2015. Raymond filed
a notice of appeal of these matters seven days prior to the ruling
issued by the probate court, on December 22, 2015. The court
denied both motions in its December 29, 2015 ruling.
Robert and Jenifer’s motion to enter judgment and for
attorney fees and costs was heard and granted on January 7,
2016. 9 Raymond filed a timely notice of appeal of these rulings
on February 4, 2016.
9 Because the record reflects two efforts to obtain entry of
judgment but no judgment appears in the record on appeal, we
sent a letter to the parties inquiring, inter alia, if a judgment had
ever been entered. In response to our letter, Raymond, on the
one hand, and Robert and Jenifer, on the other, filed requests
that we take judicial notice of the judgment entered on
February 19, 2016. While we grant those requests (Evid. Code,
§§ 452, subd. (d) & 459, subd. (a)), we do not find these judgments
relevant to resolving the issues raised by the several notices of
appeal.
For reasons we discuss in footnote 8, ante, and more fully in
the text, post, the October 23, 2015 Order fully resolved the
issues in the Trustee’s Petition then before the probate court and
11
Robert and Jenifer filed a second motion, for additional
attorney fees and costs, which the probate court also granted, and
is itself an appealable order. We note that it was entered in part
based on the 2014 and 2015 Settlement Agreements among the
parties which contained provisions authorizing a court to enforce
the terms of those agreements. The October 23, 2015 Order
granted the Trustee’s Petition, also making reference to these
settlement agreements and approving their terms.
It was not until February 2016 that the first of the two
“judgments,” was signed and filed. This was well after the
probate court no longer had jurisdiction over the matters
determined in the October 23, 2015 Order as a consequence of
Raymond’s December 22, 2015 appeal, which terminated the
probate court’s jurisdiction over the orders identified in the
December 2015 notice of appeal, including the October 23, 2015
Order. (Code Civ. Proc., § 916, subd. (a); see Critzer v. Enos
(2012) 187 Cal. App. 4th 1242, 1249 [trial court lacked jurisdiction
to enter a judgment while an appeal was then pending]; Varian
Medical Systems, Inc. v. Delfino (2017) 35 Cal. 4th 180, 198-199
[further trial court proceedings on issues addressed in notice of
appeal were beyond trial court’s jurisdiction and void]; see
Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs
(The Rutter Group 2017) ¶ 7:2.)
Also following our inquiry, Robert and Jenifer sought
judicial notice of the judgment entered on April 25, 2016,
reflecting the order granting them attorney fees, filed March 18,
2016. That order was independently appealable; the April
judgment was issued after the probate court had lost jurisdiction
in that matter. (Apex LLC v. Korusfood.com (2013) 222
Cal. App. 4th 1010, 1015; see also Sjoberg v. Hastoff (1948) 33
Cal. 2d 116, 119 [appeal allowed if the order is final in a collateral
proceeding “growing out of the action”].) The appeal of this order
was based on the March order, and properly so. For these
reasons, we do not give further consideration to these two
postorder “judgments.”
12
from which Raymond filed a timely notice of appeal on May 2,
2016. With the stipulation of the parties, we consolidated these
appeals.
CONTENTIONS
Raymond frames the primary issue on appeal as whether
the probate court erred in allocating the postdeath appreciation
in the Ranch among all of the Blech Children (with a consequence
that his share in that appreciation was limited to his 35 percent
of the residue) while charging Raymond with all postdeath taxes
and expenses on the sale of the Ranch. Raymond also contends
the probate court erred in finding he: (a) released any objections
to the Trustee’s allocations by his execution of the 2014
Settlement Agreement with his siblings, (b) consented to those
allocations, and (c) is barred by equitable estoppel or laches from
asserting his objections to the Trustee’s treatment of his interest
in Arthur’s Trust. And, Raymond challenges the attorney fee
awards made to his siblings as prevailing parties in the probate
court.
Robert and Jenifer, joined by Richard, dispute Raymond’s
contentions, arguing: (a) the release contained in their 2014
Settlement Agreement precludes Raymond from prevailing on
any of his claims; (b) he is estopped from asserting his claim; (c)
he is barred by laches from doing so; (d) the probate court
properly upheld the Trustee’s allocation of gain; and (e) the
attorney fee awards were proper.
The Trustee argues: (a) Raymond disclaimed in the
probate court the allocation argument he now asserts; (b) his
objections to the Trustee’s accounting were barred because he
accepted the distribution of the net proceeds from the sale of the
Ranch without then raising the impact of the distribution on the
13
final amount to be allocated to him; and (c) he released all of his
claims in the 2014 Settlement Agreement.
DISCUSSION
I. APPELLATE JURISDICTION
Before addressing the merits of Raymond’s contentions, we
must assess which of the matters identified by Raymond in his
four notices of appeal present issues within our appellate
jurisdiction.
A. Whether an order is appealable
An order is appealable only when declared to be so by
constitution or by statute. (Northern Trust Bank v. Pineda (1997)
58 CalApp.4th 603, 606, citing Skaff v. Small Claims Court
(1968) 68 Cal. 2d 76, 78.) Trust administration matters are
among those as to which the right to appeal and the jurisdiction
of appellate courts are regulated by statute. (Northern Trust,
p. 606; H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96
Cal. App. 4th 1357, 1365.)
Code of Civil Procedure section 904.1 sets forth the
direction for our analysis. Subdivision (a)(10) provides: An
appeal lies “[f]rom an order made appealable by the provisions of
the Probate Code . . . .” Probate Code section 1300 states
multiple bases for appeal, providing, in part: “In all proceedings
governed by this code, an appeal may be taken from the making
of, or the refusal to make, any of the following orders: [¶] (a)
Directing, authorizing, approving, or confirming the sale, lease,
encumbrance, grant of an option, purchase, conveyance, or
exchange of property. [¶] (b) Settling an account of a fiduciary.
[¶] (c) Authorizing, instructing, or directing a fiduciary, or
approving or confirming the acts of a fiduciary. [¶] (d) Directing
or allowing payment of a debt, claim, or cost. [¶] (e) Fixing,
authorizing, allowing, or directing payment of compensation or
14
expenses of an attorney. [¶] (f) Fixing, directing, authorizing, or
allowing payment of the compensation or expenses of a fiduciary.”
An appeal from the October 23, 2015 Order concerning the
Petition is within the scope of matters made appealable by this
section.
In addition, Probate Code section 1304, subdivision (a)
provides that “[a]ny final order under Chapter 3 (commencing
with Section 17200 [of the Probate Code])” is appealable. (Estate
of Stoddart (2004) 115 Cal. App. 4th 1118, 1125-1126; Eisenberg
et al., Cal. Practice Guide: Civil Appeals and Writs, supra,
¶ 2.191, p. 2-137.) In determining whether a matter is within the
scope of Probate Code section 17200, the court determines the
effect of that order rather than the label given to it. (Estate of
Miramontes-Najera (2004) 118 Cal. App. 4th 750, 756.) For
example, although an order granting an accounting is not
expressly made appealable by Probate Code section 1304, such an
order is appealable when it implicitly decides an issue which may
be the subject of an appealable order. (Esslinger v. Cummins
(2006) 144 Cal. App. 4th 517, 522 [order determining the existence
of a power, duty, or right under a trust is appealable]; see also
Christie v. Kimball (2012) 202 Cal. App. 4th 1407, 1411 [same];
Gridley v. Gridley (2008) 166 Cal. App. 4th 1562, 1586-1587
[same].) 10
10 There is an exception to this rule, but it is limited to
whether a beneficiary may obtain an accounting. Under that
circumstance, an order to account is appealable when it expressly
or implicitly decides other issues that could be the subject of an
appealable order. (Esslinger v. Cummins, supra, 144
Cal.Appp.4th at p. 522.)
A second subdivision of Probate Code section 1304,
subdivision (c), makes appealable “[a]ny final order under Part 1
15
Matters not authorized by statute for appellate review
must be dismissed. Thus, when an appellate court determines
that it lacks appellate jurisdiction to hear a matter presented to
it, it must act on its own motion and dismiss such an
unauthorized appeal. (Rubin v. Western Mutual Ins. Co. (1999)
71 Cal. App. 4th 1539, 1548; Northern Trust Bank v. Pineda,
supra, 58 Cal.App.4th at p. 608.)
B. Raymond’s appeals
With these principles set forth, we address the several
appeals Raymond has filed. (Although the appeals are
consolidated, we must nevertheless address each of the now
consolidated requests to determine whether exercise of our
jurisdiction is proper as to each.) The following list sets out the
date of filing of the particular notice of appeal, followed by the
date and a brief description of the orders to which that appeal is
directed:
(commencing with Section 20100) . . . [of the Probate Code].”
Section 20100 concerns the determination of liability for the
payment of estate taxes. In this case, the issues include which of
the Blech Children should bear the effect of payment of the
capital gains tax on the sale of the Ranch, an income tax issue not
addressed by the cited statute.
16
(1) November 9, 2015: appealing the August 19, 2015
Order rejecting Raymond’s Supplemental Objections and the
October 30, 2015 Denial of Motion for New Trial and Motion to
Vacate pursuant to Probate Code sections 1300, subdivisions
(b) 11 and (c) 12 and section 1304, subdivision (a). 13
(2) December 22, 2015: appealing the October 23, 2015
Order and the December 22, 2015 Denial of Motion for New Trial
and Denial of Motion to Vacate.
(3) February 4, 2016: appealing the January 7, 2016 order
issued under Probate Code sections 1300, subdivisions (b), (c),
(e) 14 and 1304, subdivision (a).
(4) May 2, 2016: appealing the March 18, 2016 order
(citing the same statutes as the February 4, 2016 appeal).
1. The appeal from the October 23, 2015 Order
This appeal, as indicated by its description, is from the
Order resolving all issues with respect to the Petition (and
preserving Raymond’s contentions regarding the nature of the
gift of the Ranch and how the Ranch should be valued).
Raymond clearly objected to certain aspects of this Order and, for
11 This statute authorizes appeal from an order settling an
account of a fiduciary.
12 This statute authorizes an appeal from an order
“authorizing, instructing, or directing a fiduciary, or approving or
confirming the acts of a fiduciary.”
13 As noted, ante, this statute authorizes appeal of any order
listed in Probate Code section 17200 which is final (with
exceptions not relevant in this case).
14 The terms of this statute are set out in the text, ante.
17
the reasons discussed, ante, this is an appealable order. (Code
Civ. Proc., § 904.1, subd. (a)(10); Prob. Code, §§ 1300, subds. (b) &
(c), 1304, subd. (a).)
2. The appeal from the August 19, 2015 Order
By his November 9, 2015 notice of appeal, Raymond also
seeks to appeal the probate court’s August 19, 2015 Order
rejecting the contentions asserted in his Supplemental
Objections. However, the court’s ruling filed that date did not
fully resolve the Petition. Indeed, the only issue resolved was
that bifurcated from the Petition for determination in advance of
all other issues (with the intention of aiding the parties in
settling all of those other issues in a then-scheduled mediation
session).
The August 19, 2015 Order is a clear example of an order
on a bifurcated issue, leaving all other issues presented by the
Petition for later determination. The petition that resulted in
Raymond’s eventual filing of his Supplemental Objections (the
Petition) presented a host of issues – and all but one remained for
determination once the August 19 Order 2015 was issued. As the
order listed in this notice of appeal did not resolve all issues
presented in the Petition, no appeal lies from it, and this appeal
must be dismissed.
3. Denials of the Motions for New Trial
Raymond filed two motions for new trial, the first
concerning the August 19, 2015 Order and the second concerning
the October 23, 2015 Order.
There are two reasons why the appeals from the denials of
the two motions for new trial are unavailing. First, a motion for
new trial is premature if it is made before all issues have been
tried. (Cobb v. University of So. California (1996) 45 Cal. App. 4th
181140, 1144; see Cal. Rules of Court, rule 3.1591(c).) Thus, in Ruiz
v. Ruiz (1980) 104 Cal. App. 3d 374, a notice of intention to move
for new trial served and filed before the completion of trial of all
issues presented was held to be premature and void. (Id. at pp.
378-379; Cobb, at p. 1144; Ochoa v. Dorado (2014) 228
Cal. App. 4th 120, 132.)
Because the motion for new trial in this case denied on
October 30, 2015, sought review of the August 19, 2015 Order on
a bifurcated issue, it is fatally flawed for reasons discussed, ante.
Second, that motion for new trial and the second motion for
new trial filed to challenge the October 23, 2015 Order, in which
the probate court did finally resolve all of the issues presented in
the Petition, suffer an additional, shared defect: The denial of a
motion for new trial is not appealable. Rather, such a ruling is
reviewable on appeal from the underlying judgment. (See Code
Civ. Proc., § 904.1, subd. (a)(2); Walker v. County of Los Angeles
Metropolitan Authority (2005) 35 Cal. 4th 15, 18-19, citing
Rodriguez v. Barnett (1959) 52 Cal. 2d 154, 156; Hamasaki v.
Flotho (1952) 39 Cal. 2d 602, 608.)
4. The Motion to Vacate the August 19, 2015
Order
Raymond’s Motion to Vacate the August 19, 2015 Order
suffers from the same defect as his motion for new trial based on
the order of that date: The motion is directed to a bifurcated
order rather than a final judgment. While the statutory basis for
the motion to vacate is Code of Civil Procedure section 663 rather
than Code of Civil Procedure sections 656 and 657 applicable to
motions for new trial, the two motions have in common that they
can only be made once a judgment is entered. (E.g., Glen Hill
19
Farm LLC v. California Horse Racing Bd. (2010) 189 Cal. App. 4th
1296, 1301.)
5. The Motion to Vacate the October 23, 2015
Order
Raymond’s Motion to Vacate the October 23, 2015 Order
addresses the denial of his motion to vacate the Order entered by
the probate court that date and as to which Raymond has filed a
valid appeal (discussed, ante).
The denial of a motion to vacate a judgment is appealable
in the same manner as a judgment or order such as that filed
October 23, 2015. It is not treated like the denial of a motion for
new trial. (Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 130, 133
[order denying motion to vacate is appealable even though the
same grounds may be urged on an appeal from the judgment];
9 Witkin, Cal. Procedure (5th ed. 2008) Appeal § 200, pp. 275-
277.) However, there is older authority that suggests that there
is no appeal from denial of a motion to vacate an order (as
distinct from a judgment), at least when application is made
pursuant to Code of Civil Procedure section 473. (E.g., In re
Rouse’s Estate (1957) 149 Cal. App. 2d 674, 679-680.) We need not
resolve this issue because the appeal from the denial of the
motion to vacate the October 23, 2015 Order raises the same
issues as may be raised in an appeal from that order, and as to
which Raymond has filed a timely appeal. 15
15 Raymond presents no argument specifically directed to the
denial of this motion, likely because of the identity of issues
presented as noted in the text accompanying this footnote.
That Raymond’s notice of appeal on this basis was
premature (as it was filed prior to the probate court’s relevant
ruling on January 7, 2016), is not fatal. (Estate of Haviside
20
6. The February 4, 2016 and May 2, 2016 Notices
of Appeal
In his notices of appeal filed February 4, 2016, and May 2,
2016, Raymond seeks our review of the probate court’s awards of
attorney fees and costs to Robert and Jenifer, based on orders
awarding fees to them on January 7 and March 18, 2016, and the
award of such fees and costs to Richard on January 7, 2016.
These awards were made based on a provision in the 2014
Settlement Agreement and are proper subjects of appeal based on
that contract. 16
(1980) 102 Cal. App. 3d 365, 368 [premature filing of such a
motion does not deprive the appellate court of jurisdiction to hear
it].)
16 In his notices of appeal of these orders, Raymond relies on
Probate Code sections 1300, subdivisions (b), (c) and (e) and
section 1304, subdivision (a). While we agree these orders are
appealable, in our view the source of that authority arises from
the circumstance that what the moving parties sought was
enforcement of a contractual provision for fees contained in the
2014 Settlement Agreement. Such an appeal is authorized by
Code of Civil Procedure section 904.1, subdivision (a)(2). The
probate court had jurisdiction to entertain these motions under
“the broad equitable powers that a probate court maintains over
the trust within its jurisdiction” rather than “under [its]
supervisory power.” (Rudnick v. Rudnick (2009) 179 Cal.App4th
1328, 1333, citing Hollaway v. Edwards (1998) 68 Cal. App. 4th
94, 99, original italics.) In addition, it has concurrent jurisdiction
with the civil court over actions and proceedings. (Prob. Code,
§ 17000, subd.(b).) We make this distinction as the amounts
awarded are not chargeable against the Trustee.
21
II. RAYMOND DID NOT WAIVE BELOW THE
ALLOCATION ARGUMENT HE ASSERTS ON APPEAL
Raymond contends a proper construction of the Trust and
principles applicable to its funding require that he be allocated
all of the appreciation in the value of the Ranch from the date of
Arthur’s death and that the probate court erred in determining
he had waived this contention.
The Trustee contends Raymond did not argue in the
probate court that “the post-death appreciation of the ranch
should not count against his 35 percent [residuary] share,” and
that Raymond cannot argue for the first time on appeal that he
should be credited with all of the postdeath appreciation in the
Ranch. However, in an effort to explain the basis for its
contention on appeal, the Trustee mixes concepts in a way that
does not clearly state Raymond’s position, either in the probate
court or on appeal.
Raymond correctly summarizes what occurred below: “As
accounted for by [the Trustee], Raymond received no benefit from
the inclusion of [the] Ranch in his 35% interest [in the residue]
that he would not have received had [Arthur] just left [the] Ranch
to the Trust generally.[ 17] But [Raymond] was saddled with
100% of the tax burden.”
Raymond’s principal argument to the probate court was
that the gift of the Ranch was a residuary gift under Probate
17 As we shall discuss, post, Raymond errs: Arthur
designated the Ranch as a means of funding his residuary gift to
Raymond, rather than as a separate, specific gift to him.
22
Code section 21117, subdivision (f); 18 as such, all of the postdeath
appreciation, in addition to all of the taxes and expenses
attributable to the operation and sale of the Ranch, properly
would have been allocated among all of the siblings; but that, if it
were a specific gift 19 – as the probate court ultimately ruled: (1)
the taxes and expenses for the Ranch should be allocated to him
alone, and (2) he also is entitled to all of the postdeath
appreciation in the Ranch. 20
To overcome the Trustee’s claim that he may not now
advance this argument, Raymond further argues that on appeal
he seeks “the proper application of the consequences of the
classification of the gift of the ranch as a specific gift to the
undisputed facts.” 21 Thus, Raymond contends he is arguing a
theory on appeal, which, albeit new, presents only a purely legal
question, and one resulting from what he also claims is a
partially flawed determination by the probate court. He may do
18 Probate Code section 21117, subdivision (f) provides: “A
residuary gift is a transfer of property that remains after all
specific and general gifts have been satisfied.”
19 Probate Code section 21117, subdivision (a) provides: “A
specific gift is a transfer of specifically identifiable property.”
20 The appreciation in the value of the Ranch between the
date of Arthur’s death and the sale date was significant: during
that period, the Ranch nearly doubled in value.
21 We also reject the Trustee’s argument that Raymond’s
present contention was waived during argument in the probate
court on July 13, 2015. Raymond’s argument on appeal is
different, for reasons described in this section of this opinion.
23
so. (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983)
34 Cal. 3d 412, 417 [appellate court may address purely legal
questions presented for the first time on appeal when no factual
determinations are required]; Ward v. Taggart (1959) 51 Cal. 2d
736, 742 [same].)
III. RAYMOND’S OBJECTIONS WERE NOT BARRED BY
PROBATE CODE SECTIONS 16463 AND 16465
The Trustee contends the probate court correctly concluded
that Probate Code sections 16463 and 16465 barred Raymond’s
Supplemental Objections. In support of that ruling, the Trustee
points out it kept Raymond informed it was allocating the Ranch
to a subtrust created for him, and expenses of Ranch operations
and, most significantly, the income tax due for the sale of the
Ranch, would be taken from that subtrust; Raymond never
objected; and his counsel had sent the Trustee a spreadsheet
which contained data consistent with the Trustee’s proposed
actions. The Trustee also argues neither Raymond nor his
counsel had objected to this treatment until April 2015, when he
filed his Supplemental Objections.
Raymond argues these statutes do not apply to his
Supplemental Objections, and his Supplemental Objections are
directed to the accounting and allocations which the Trustee has
made and proposes to make to the Blech Children and not to
anything that occurred in connection with the sale of the
Ranch. 22
22 Although the Trustee argues the substantial evidence test
is to be used to analyze this issue, our review is de novo, as we
are discerning the meaning of statutes on undisputed facts.
(People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal. 4th
415, 432.)
24
Probate Code section 16463 provides in part: “(a) Except
[in circumstance not relevant in the present case], a beneficiary
may not hold the trustee liable for an act or omission of the
trustee as a breach of trust if the beneficiary consented to the act
or omission before or at the time of the act or omission.” And,
Probate Code section 16465 provides in part: “(a) Except [in
circumstance not relevant in the present case], if the trustee, in
breach of trust, enters into a transaction that the beneficiary may
at his or her option reject or affirm, and the beneficiary affirms
the transaction, the beneficiary shall not thereafter reject it and
hold the trustee liable for any loss occurring after the trustee
entered into the transaction.”
Raymond agrees he consented to the sale of the Ranch,
pointing out his objections instead are to the accounting which
the Trustee petitioned the probate court to accept. Thus,
Raymond is raising a difference of opinion regarding an
accounting matter; he is not alleging a breach of trust by the
Trustee. The remedy, if Raymond’s objection to the accounting
petition is successful, is to change specified allocations among the
various trusts, i.e., to require the Trustee to comply with
Raymond’s view of the proper funding of the gifts to the Blech
Children, not to hold the Trustee liable for damages or to obtain
restitution from it. Thus, Probate Code section 16463 has no
application to the present dispute. Nor do Raymond’s actions
come within the issues addressed in section 16465, as Raymond
has no objection to the manner of sale of the Ranch or to the sale
price; indeed, he freely admits he encouraged and advocated that
sale. For these reasons, the probate court erred in finding these
sections applicable, and this argument by the Trustee is without
merit.
25
IV. RAYMOND IS NOT ESTOPPED FROM ASSERTING
HIS OBJECTIONS TO THE TRUSTEE’S ACCOUNTING
Raymond contends the probate court erred in determining
he “both consented to and affirmed [the Trustee’s] treatment of
the [gift of the Ranch], and the other Beneficiaries relied upon
Raymond’s actions, and Raymond is thus estopped from now
challenging that treatment.”
Establishing an equitable estoppel is dependent upon proof
of four elements: “(1) the party to be estopped must know the
facts; (2) the estopped party must intend that his conduct shall be
acted upon or must act in a way that causes the other party to
believe that was his intent; (3) the party asserting estoppel must
be unaware of the true facts; and (4) he must detrimentally rely
on the other party's conduct. (Estate of Bonanno (2008) 165
Cal. App. 4th 7, 22.) If an estoppel is established, the estopped
party is deprived of applicable rights or defenses. (Ibid.) While
estoppel generally is a question of fact, if the facts are undisputed
and only one reasonable conclusion can be drawn from them, it
becomes a question of law. (Ibid.)” (Estate of Bonzi (2013) 216
Cal. App. 4th 1085, 1106.)
As the facts relevant to analysis of this issue in this case
are undisputed, we determine the matter de novo. (People ex rel.
Lockyer, supra, 24 Cal.4th at p. 432.) In making this
determination, we observe that the doctrine of equitable estoppel
is based on principles of equity and fair dealing and provides that
a person may not deny the existence of a state of facts if that
person had intentionally led others to believe a particular
circumstance to be true and to rely upon that belief to the
detriment of the other party. (Lantzy v. Centex Homes (2003) 31
26
Cal. 4th 363, 383; City of Oakland v. Oakland Police & Fire
Retirement System (2014) 224 Cal. App. 4th 210, 239-240.)
In this case, the argument that Raymond has led his
siblings to rely on his actions to their detriment is unconvincing.
There are no facts that he encouraged any of his siblings to take
any action on his or her own behalf; all had the same access to
information and Raymond was entirely focused on his own
interests. Also, the key document relied upon in support of the
claim that Raymond is estopped is a spreadsheet containing
estimates of allocations among the beneficiaries prepared by the
Trustee, not Raymond. Further, each of the versions of this
spreadsheet is headed with the statement that it is “For
Discussion Purposes – Not Final Calculations and May Not Be
Relied Upon for Any Purposes.” All of the Blech Children
received the same information and all had the same access to the
Trustee. 23
While one might argue the spreadsheets put the
beneficiaries on notice of what was likely to occur with respect to
the ultimate distribution of assets, doing so truncates the
statutory process of petitions for accountings. That statutory
process is replete with requirements for disclosures and accuracy
in its financial schedules. Holding that any beneficiary is
estopped from asserting a contention with respect to, e.g., an
accounting spreadsheet once a petition for accounting is filed on
the basis that the beneficiary did not object to a prefiling version
23 During oral argument, it was pointed out that another
spreadsheet had been distributed six months earlier which also
included estimated amounts to be allocated subject to verification
of certain information and conclusion of pending transactions. It
did not have the quoted qualifying language.
27
of the document actually filed, deprives each beneficiary who
received the earlier version of the protections provided by the
statutory requirements for accountings and is inequitable. Thus,
the circumstance that the Trustee circulated preliminary
calculations to which no objection was made does not estop any
recipient to later argue a position based on the final version of an
accounting even if it was also discernable in a “For Discussion
Purposes” version of that accounting. It is the filing of the
petition for accounting that compels a party desiring to present
any opposition to it to do so.
Nor was Raymond’s conduct inconsistent with the legal
position he was then arguing that was predicated upon the Ranch
being a residuary gift.
The arguments which the siblings make are based on what
they perceive to be a contradiction between Raymond’s silence
during the sale of the Ranch on the one hand as to issues other
than its sale, and Raymond’s objections to the accounting first
asserted once the Trustee filed its petition, on the other.
However, until Raymond was served with the Petition he was
under no obligation to assert his legal contentions.
Further, the circumstance that the Trustee serves as
trustee precludes it from making an argument based on estoppel.
Its role vis-à-vis the parties is to be neutral – fair and accurate.
It has made no argument that it has been prejudiced by
Raymond’s conduct. And, it would be inequitable to allow it to
defeat Raymond’s challenge to its petition for accounting based
on Raymond’s actions that resulted in part from the preliminary
financial presentations it uttered. (See Drake v. Pinkham (2013)
217 Cal. App. 4th 400. 406.)
28
We conclude that the probate court erred in finding
Raymond was estopped by his conduct from challenging the
Trustee’s petition for approval of its first accounting. 24
V. THE RELEASE
The probate court determined Raymond’s execution of the
2014 Settlement Agreement released the objections he made in
his Supplemental Objections. Raymond contends that ruling was
error, arguing the express terms of his agreement with his
siblings allowed his later-filed Supplemental Objections. His
siblings dispute his contention, arguing the release contained in
the 2014 Settlement Agreement bars Raymond from making any
objection to the accounting in the Petition notwithstanding that it
was filed by the Trustee after the date of execution of the
release. 25 We conclude that, although it is broad in scope, the
24 The siblings’ claim that Raymond’s contentions are barred
by the doctrine of laches also fails. An essential element of that
claim is prejudice (e.g., Miller v. Eisenhower Medical Center
(1980) 27 Cal. 3d 614, 624). The siblings have made no such
showing. Their claims that they each would be required to return
more than $1 million to the Trust to be reallocated are not
supported by citations to the record. We therefore do not credit
them. (City of Lincoln v. Barringer (2002) 102 Cal. App. 4th 1211,
1239; Aguimatang v. California State Lottery (1991) 234
Cal. App. 3d 769, 796.)
25 The Trustee “joins” in the arguments advanced by the
siblings, relying on California Rules of Court, rule 8.200(a)(5).
Raymond argues the Trustee does not have standing to address
this issue because it was not a party to the 2014 Settlement
Agreement and, as trustee, it is “obligated to deal impartially
with all the Beneficiaries (Cal. Probate Code § 16003).” Because
the Trustee advances no distinct argument on this issue, and we
29
release did not preclude any of the Blech Children from filing
objections to the accounting presented in the Petition.
A. Additional facts
The Blech Children executed the 2014 Settlement
Agreement as of August 27, 2014. Raymond signed on his own
behalf and as Executor of the estate of Arthur Blech. His siblings
signed as individuals. All of the siblings were represented by
counsel, each of whom also signed “as to form.”
We focus our discussion on those paragraphs of the 2014
Settlement Agreement which bear directly on the issue to be
resolved. Eight “Recitals” precede the 31-paragraph
“Agreement.” Recital G states that “Each Blech Beneficiary
agrees and acknowledges that he/she has a right to seek a Court
order charging certain expenses of administration of the Estate
or Trust (including legal fees) against another party’s share of the
Trust (‘Charging Claims’). The parties agree that all rights
relating to the Charging Claims through the date of this
Agreement are resolved and released pursuant to the terms and
conditions of this Agreement except for the right to object to
certain actions related to specified probate matters.
The first paragraph of the body of the Agreement
incorporates the Recitals “into this Agreement as set forth in
full.” Paragraph 2 provides the terms of the Agreement “govern
and control” in the event of “any conflict, inconsistency, or
incongruity, between any provision of this Agreement and any
provision of the Will or Trust . . . .” Paragraph 4 directs certain
resolve it adversely to those who advocate it, we do not otherwise
address the Trustee’s purported joinder.
30
siblings to order the Trustee to make specified payments to other
siblings.
Paragraph 5, headed “Estate Proceeding,” contains five
lettered subparagraphs, addressing the resolution of debts owed
to the estate, dismissal of actions concerning Raymond’s actions
as executor, and resolution of contentions regarding estate tax
and income tax returns for the estate.
Paragraph 6 contains nine “Instructions to Trustee” in
which the Blech Children “collectively and unanimously instruct”
the Trustee to do certain things, mostly consisting of payments to
a particular sibling or to account for an expenditure by or on
behalf of a sibling in a particular way, including the following:
“All transactions set forth in the Executor’s First Account
shall be treated as expenses of Estate administration,” rather
than being charged to any of the Blech Beneficiaries. The
expenses to be so treated include “expenditures for the benefit of
the 3,050 acre ranch” that Robert, Jenifer and Richard allege
have “benefited Raymond personally. . . .” (¶ 6(b).)
“The cost of roof repair to Jenifer’s Montana residence (in
the amount of $13,025.00) shall be an expense of Trust
administration, and shall not be charged against [her] share of
the Trust.” (¶ 6(c).)
Provide the Blech Children with statements of the
Trustee’s trustee and legal fees and work with them “to resolve,
without litigation,” the amount of such fees. The Blech Children
reserve to themselves the right to challenge the Trustee’s “trustee
and legal fees.” (¶ 6(g).)
In paragraph 7, the siblings “agree and acknowledge that
the material purposes and considerations for the resolutions
reached . . . are to (i) preserve Estate and Trust resources, (ii)
31
avoid litigation and trial on the Executor’s First Account, and (iii)
close the Estate and terminate the Trustee as soon as possible.”
Paragraph 8 states that “This Agreement shall be
enforceable as among all of the parties [and] [t]he Court in the
Estate Proceeding shall retain jurisdiction to enforce the terms of
this Agreement that are related to the Estate . . . .”
Paragraph 10 contains the parties’ mutual releases. With
certain exceptions, including those set out in paragraph 12 (see
discussion, post), the parties release each other and all persons
and entities related to any of the parties from all past or present
claims “of whatever kind or nature,” “whether known or
unknown, suspected or unsuspected, anticipated or
unanticipated, that any or each of them had, has, or might have
arising out of or in any way related to the Trust, Trust
Proceeding . . . or any other claims or issues related thereto.”
Paragraph 11 sets out the release of unknown claims,
which is total except for specified matters. One of the matters as
to which there is no release of unknown claims concerns “the
parties’ rights against [the Trustee] or any successor trustee” as set
out in paragraph 12. 26 (Italics added.)
26 The release, in reliance on Civil Code section 1542,
expressly “acknowledge[s] and agree[s] that [the Blech Children]
are aware that they may hereafter discover claims presently
unknown or unsuspected, or facts in addition to or different from
those which they now know or believe to be true, as to the
matters released herein.” The parties also warranted that “it is
the intention of the parties, and each of them, through this
release to fully, finally and forever release all such matters, and
claims related thereto, which do now exist, may exist or
heretofore have existed.” Their releases were to “remain in effect
as a full and complete release of such matters, notwithstanding
32
Paragraph 12 states: “Nothing in this Agreement, whether
express or implied, including but not limited to the provisions of
Paragraph 10 (Mutual Releases) of this Agreement, is intended to
confer third-party beneficiary status or to confer otherwise any
rights to [the Trustee] (or any successor trustee) . . . . Nor is
anything in this Agreement intended to relieve or discharge the
obligation or liability of any third party to any undersigned party
to this Agreement. Nor shall any provision hereof afford any third
party any right of subrogation, indemnity, contribution, set-off or
action over against any party to this Agreement.” (Italics added.)
In paragraph 13, the parties acknowledge each was
represented by counsel or had the opportunity to consult with
counsel. This representation is confirmed by the signature pages
of the Agreement which contain the signatures of counsel for each
of the Blech Children “as to form.”
B. Discussion
Raymond’s siblings make several preliminary arguments
before focusing on their principal contention, that the release in
the 2014 Settlement Agreement bars Raymond from making the
claims he asserts in his Supplemental Objections and on appeal.
The siblings do not support any of these preliminary claims with
authority, however, and they include in this section of their brief
facts not admitted by the probate court at the July 2015 hearing.
They also acknowledge that those claimed facts were excluded.
As there is neither legal authority nor citation of facts admitted
into evidence below to support these preliminary arguments, we
the discovery or existence of any additional or different claims or
facts relating thereto.”
Notwithstanding this broad language, there is an exception
to its scope, as is now discussed in the text of this opinion.
33
do not consider them. (Harding v. Harding (2002) 99
Cal. App. 4th 626, 635; Ellenberger v. Espinosa (1994) 30
Cal. App. 4th 943, 948 [brief without legal argument and citation
to authorities on the points made may be treated as waived or
abandoned]; City of Lincoln v. Barringer, supra, 102 Cal.App.4th
at p. 1239 [contentions unsupported by citation to relevant facts
are disregarded on appeal].)
The parties agree the 2014 Settlement Agreement is a
contract, and that we determine its meaning by application of
well-established principles applicable to the construction of
contracts. Thus, our review is de novo; we exercise our
independent judgment as to the meaning of the 2014 Settlement
Agreement because “[i]t is a judicial function to interpret a
contract or written document unless the interpretation turns
upon the credibility of extrinsic evidence. . . . [Thus, we
endeavor] to effectuate the mutual intent of the parties as it
existed at the time of contracting insofar as it is ascertainable
and lawful.” (City of El Cajon v. El Cajon Police Officers’ Assn.
(1996) 49 Cal. App. 4th 64, 70-71.)
“ ‘Where the parties have reduced their agreement to
writing, their mutual intention is to be determined, whenever
possible, from the language of the writing alone.’ [Citations.]
‘Contract formation is governed by objective manifestations, not
the subjective intent of any individual involved. [Citations.] The
test is “what the outward manifestations of consent would lead a
reasonable person to believe.” ’ ” (Allen v. Smith (2002) 94
Cal. App. 4th 1270, 1277.) “It is the outward expression of the
agreement, rather than a party's unexpressed intention, which
the court will enforce.” (Winet v. Price (1992) 4 Cal. App. 4th 1159,
1166.) Thus, in interpreting the contract under review, we are
34
not concerned as much with what the parties might tell us they
meant by the words they used as with how a reasonable person
would interpret those words.
Of equal importance is the rule that “ ‘[a] contract must
receive such an interpretation as will make it lawful, operative,
definite, reasonable, and capable of being carried into effect, if it
can be done without violating the intention of the parties.’ (Civ.
Code, § 1643; see also id., § 3541.)” (People v. Parmar (2001) 86
Cal. App. 4th 781, 802.)
Finally, we note that “[t]he whole of a contract is to be
taken together, so as to give effect to every part, if reasonably
practicable, each clause helping to interpret the other.” (Civ.
Code, § 1641.) “[E]ven if one provision of a contract is clear and
explicit, it does not follow that that portion alone must govern its
interpretation; the whole of the contract must be taken together
so as to give effect to every part.” (Alperson v. Mirisch Co. (1967)
250 Cal. App. 2d 84, 90.) “ ‘An interpretation which renders part
of the instrument to be surplusage should be avoided.’ (Ticor
Title Ins. Co. v. Rancho Santa Fe Assn. (1986) 177 Cal. App. 3d
726, 730.)” (Quantification Settlement Agreement Cases (2011)
201 Cal. App. 4th 758, 799.)
There is no doubt: the mutual releases contained in
paragraph 10, and the mutual releases of unknown claims set out
in paragraph 11, are broad and encompassing. It is equally clear
that there are certain exceptions to these releases, including as
relevant to the present matter, the exception from their scope “as
set forth in . . . paragraph 12.” These exceptions include the
reservation of the parties’ rights against the Trustee, specific
exceptions to the releases stated in paragraph 10, as well as
35
exceptions to the breadth of the release of unknown claims set
out in paragraph 11.
With specific reference to Raymond’s argument,
paragraph 12 includes the following limitation on the scope of
other provisions that would – without it – adversely affect
Raymond’s claim: “Nor is anything in this Agreement intended
to relieve or discharge the obligation or liability of any third
party to any undersigned party to this Agreement.”
Raymond argues that the probate court’s decision that his
Supplemental Objections were released in this document is
deficient in three respects: it “is not supported by the express
terms of that agreement, [it] is not supported by the
circumstances surrounding that agreement, and [it] ignores that
the objections were to an Accounting Petition that was first filed
some two months after the [2014 Settlement Agreement].”
The siblings rely on the release of unknown claims
contained in paragraph 11 to support their attempt to validate
the probate court’s ruling. In doing so, the siblings argue “Robert
and Jenifer [with joinder by Richard] have never contended that
[Raymond] gave up all rights to challenge [the Trustee’s]
accounting, or even to seek surcharges against [the Trustee] . . . .
He did, however, give up rights to impose costs on his siblings or
their subtrusts.”
The first difficulty with the siblings’ argument is that there
is no evidence a consequence of Raymond’s argument would be to
impose costs on his siblings. Although the siblings make this
claim, the facts upon which they base it were not admitted below
and we therefore do not consider them or the argument
predicated upon those “facts.”
36
The siblings’ second argument is that the scope of the
waiver of claims under Civil Code section 1542 is so broad as to
preclude Raymond’s claims. In this regard, they point to the text
of paragraph 11, in particular, to the section providing the
signers of the 2014 Settlement Agreement specifically
“acknowledge and agree . . . that they may hereafter discover
claims presently unknown or unsuspected, or facts in addition to
or different from those which they now know or believe to be true,
as to the matters described herein,” as well as to other similar
language.
What they do not do is consider the express limitations on
the scope of that release which we have set out, ante, which
appear both in paragraph 11 and in paragraph 12 (e.g., the
provision in paragraph 12 stating: nothing “in this Agreement
[is] intended to relieve or discharge the obligation or liability of
any third party to any undersigned party to this Agreement”). 27
27 The siblings do concede that the release does not bar
Raymond from challenging an action by the Trustee, but only so
long as they are not adversely affected should he prevail.
The siblings also contend Raymond’s claim is without merit
based on the circumstance that the probate court rejected his
proffer of evidence of his intent in signing the Settlement
Agreement. Their claim is without persuasive force, as
Raymond’s subjective intent is not relevant to either court
properly construing the document. Further, we construe the
document according to the rules articulated in the text, ante; i.e.,
we give the document a reasonable construction based on all of
its provisions rather than on the subjective intent of any of the
parties. (M &F Fishing, Inc. v. Sea-Pac Ins. Managers, Inc.
(2012) 202 Cal. App. 4th 1509, 1530 [“ ‘ “It is the outward
expression of the agreement, rather than a party’s unexpressed
37
Thus, their references to the text of the 2014 Settlement
Agreement are unduly selective, resulting in a fatal flaw in their
argument.
Notwithstanding the siblings’ factually unsupported
argument that were Raymond to prevail in his Supplemental
Objections his siblings would be adversely affected, we are bound
to construe all of the terms of the 2014 Settlement Agreement
together, rather than give greater weight to one provision over
another, if possible: our obligation is to construe the document as
a whole. (Powerine Oil Co., Inc. v. Superior Court (2005) 37
Cal. 4th 377, 391.)
So construing the document, the siblings’ reliance
exclusively on the broad release language ignores the limitation
on the breadth of that release. It must also be noted that this
exception applies so that any of the Blech Children may file
objections to the Trustee’s accounting. Raymond did exactly that
– and he was not the only sibling to do so. Robert and Jenifer
also filed objections to the Petition, albeit on other grounds.
Thus, the siblings’ argument becomes: We, the siblings may
challenge the Trustee, but Raymond may not do so. We find the
siblings’ claim to be without merit.
VI. CONSTRUCTION OF THE RESIDUARY BEQUEST
AND ALLOCATION OF APPRECIATION IN VALUE OF
THE RANCH
Between the time of Arthur’s death and the sale of the
Blech Ranch, its fair market value increased from $7.2 million to
$14 million, at which price the Ranch was sold. The proceeds of
the sale were allocated to Raymond’s subtrust and the income
intention, which the court will enforce,” ’ ” quoting Paralift, Inc.
v. Superior Court (1993) 23 Cal. App. 4th 748, 755.].)
38
taxes on the sale of the Ranch, $2.3 million, were paid from that
source. 28 The probate court ruled that this allocation of tax
liability was correct and that it was proper to use the $14 million
valuation in allocating the remainder of the assets of the Trust
among all of the Blech Children in accord with their percentage
shares of the residue of the Trust.
Raymond contends the value of the Ranch should have
been allocated based on its date-of-death value (with Raymond
receiving the entire net proceeds of its sale, including the
appreciation in the value of the Ranch following Arthur’s death)
based on the probate court’s ruling that “The gift of Blech Ranch
to Raymond Blech was not a residuary gift under California
Probate Code § 21117(f).” 29
Raymond’s argument in support of this claim is that the
probate court’s ruling that the Ranch was not a residuary gift
meant that it must be valued at its date-of-death value of $7.2
million rather than at its $14 million sale price (as a substitute
for its date-of-distribution value). Thus, Raymond contends the
probate court’s ruling granting the Trustee’s Petition, in which
28 That Raymond is solely responsible for the income tax on
the sale of the Ranch is clearly stated in Article 5.5 of the Trust;
its second sentence provides: “Income taxes payable by any
subtrust shall be paid by the beneficiary of such subtrust.”
29 The quoted language is taken from the August 19, 2015
Order. The same legal conclusion appears in the probate court’s
December 29, 2015 Statement of Decision, following the filing of
the October 23, 2015 Order from which Raymond’s appeal is
taken.
39
the Ranch was valued for allocation among the siblings at its sale
price, was erroneous.
Raymond supports his argument using the term “specific
gift,” and, although the probate court did not use that term in its
ruling, it is an acceptable shorthand to analyze Raymond’s
contention. If Raymond were correct, he would be the sole
distributee of the $4.5 million net proceeds of the sale of the
Ranch (the difference between the sale price of $14 million and
the sum of $7.2 million [the valuation of the Ranch on the date of
Arthur’s death] and the $2.3 million in taxes paid])—and would
additionally share in 35 percent of the remainder of the Trust
estate. 30
On appeal, we review the probate court’s ruling, not its
reasons, and affirm if the ruling is correct albeit the reasons are
not; we also resolve any ambiguities in favor of affirmance. (See,
e.g., In re Marriage of Arceneaux (1990) 51 Cal. 3d 1130, 1133 [“A
judgment or order of a lower court is presumed to be correct on
appeal, and all intendments and presumptions are indulged in
favor of its correctness.”]; Munoz v. Olin (1979) 24 Cal. 3d 629,
635-636.)
The probate court’s characterization of this gift (and of all
gifts made in the Trust) was a legal determination on undisputed
facts which we review de novo. (People ex rel. Lockyer v.
Shamrock Foods, supra, 24 Cal. 4th 415, 432; Lozada v. City and
County of San Francisco (2006) 145 Cal. App. 4th 1139, 1145.) As
we now discuss, that characterization was in error, but, once
corrected, it does not alter the probate court’s determination to
30 The actual amounts would be slightly different when costs
of sale and expenses of operation of the Ranch are included.
40
value the Ranch at its sale price in determining the distribution
of the remainder of the Trust (including in the amount to be
distributed the net proceeds from the sale of the Ranch) among
the Blech Children. 31
A. Lexicon of gifts
A revocable living trust such as that under review in this
case contains transfers to be effective on the death of the settlor.
Such transfers are statutorily described as “at-death transfers.”
(Prob. Code, § 21104.) The Probate Code provides for six types of
31 We raised this issue with the parties in advance of oral
argument, offering each an opportunity to submit a letter brief on
this issue. The issue was also addressed at oral argument. Our
determinations in this opinion include consideration of the
parties’ written and oral views.
We address the proper construction of the terms of the
Trust as it involves an issue of law to be decided in this case on
undisputed facts. Such matters may be raised for the first time
on appeal. (Sea & Sage Audubon Society, Inc. v. Planning Com.
(1983) 34 Cal. 3d 412, 417 [appellate court may address purely
legal questions presented for the first time on appeal when no
factual determinations are required]; Ward v. Taggart (1959) 51
Cal. 2d 736, 742 [same].) And, as we held in Tsemetzin v. Coast
Federal Savings & Loan Assn. (1997) 57 Cal. App. 4th 1334, 1341,
footnote 6, it makes no difference that the issue is first raised on
appeal by the court rather than the parties, as long as the parties
have been given a reasonable opportunity to address it. (Accord,
Barton v. New United Motor Manufacturing, Inc. (1996) 43
Cal. App. 4th 1200, 1207.) We may also do so because Raymond’s
theory on appeal requires that we interpret the terms of a written
instrument (as well as the text of statutes), and there is no
question of fact presented, only a question of law. (Palmer v.
Shawback (1993) 17 Cal. App. 4th 296, 300.)
41
“at-death transfers”: “(a) A specific gift is a transfer of
specifically identifiable property. [¶] (b) A general gift is a
transfer from the general assets of the transferor that does not
give specific property. [¶] (c) A demonstrative gift is a general
gift that specifies the fund or property from which the transfer is
primarily to be made. [¶] (d) A general pecuniary gift is a
pecuniary gift within the meaning of Section 21118.[ 32] [¶] (e)
An annuity is a general pecuniary gift that is payable
periodically. [¶] (f) A residuary gift is a transfer of property that
remains after all specific and general gifts have been satisfied.”
(Prob. Code, § 21117.)
We observe, however, that while the parties and the
probate court directed their analysis of the terms of the Trust to
discuss application of these several types of postdeath transfers,
to properly construe the terms of the Trust we must acknowledge
the terms of Probate Code section 21102. That section provides:
“(a) The intention of the transferor as expressed in the
instrument controls the legal effect of the dispositions made in
the instrument. [¶] (b) The rules of construction in this part [of
the Probate Code] apply where the intention of the transferor is
not indicated by the instrument.” 33 (Cf. Probate Code § 16335,
32 Section 21118, subdivision (b) defines a pecuniary gift as “a
transfer of property made in an instrument that either is
expressly stated as a fixed dollar amount or is a dollar amount
determinable by the provisions of the instrument.”
33 Probate Code section 21102, subdivision (c) provides:
“Nothing in this section limits the use of extrinsic evidence, to the
extent otherwise authorized by law, to determine the intention of
the transferor.” As we discuss in the text, the only extrinsic
42
subd. (a)(1), which requires that the terms of the particular
dispositive plan be carried out even when they differ from that
which would otherwise be called for under a statute.)
We also consider in construing the terms of the Trust,
Probate Code section 21121, which provides, “All parts of an
instrument are to be construed in relation to each other and so
as, if possible, to form a consistent whole. If the meaning of any
part of an instrument is ambiguous or doubtful, it may be
explained by any reference to or recital of that part in another
part of the instrument.” And, Probate Code section 21122
advises: “The words of an instrument are to be given their
ordinary and grammatical meaning unless the intention to use
them in another sense is clear and their intended meaning can be
ascertained. Technical words are not necessary to give effect to a
disposition in an instrument. Technical words are to be
considered as having been used in their technical sense unless (a)
the context clearly indicates a contrary intention or (b) it
satisfactorily appears that the instrument was drawn solely by
the transferor and that the transferor was unacquainted with the
technical sense.”
The common law provides additional guidance: “The
interpretation of a will or trust instrument presents a question of
law unless interpretation turns on the credibility of extrinsic
evidence or a conflict therein. [Citations.]” (Burch v. George
(1994) 7 Cal. 4th 246, 254; see Tunstall v. Wells (2006) 144
Cal. App. 4th 554, 561 [same]; see Prob. Code, § 21102, subd. (c).)
Our Supreme Court has explained: “Extrinsic evidence is
‘admissible to interpret the instrument, but not to give it a
evidence in the record in this case is the drafting attorney’s
memorandum. (See, footnote 34, post.)
43
meaning to which it is not reasonably susceptible’ [citations], and
it is the instrument itself that must be given effect. [Citations.]
It is therefore solely a judicial function to interpret a written
instrument unless the interpretation turns upon the credibility of
extrinsic evidence.” (Parsons v. Bristol Development Co. (1965)
62 Cal. 2d 861, 865; see Gardenhire v. Superior Court (2005) 127
Cal. App. 4th 882, 888.)
In the case of undisputed evidence but conflicting
inferences, we apply the following standard of review: “[W]here
the evidence is undisputed and the parties draw conflicting
inferences, [the appellate court] will independently draw
inferences.” (City of El Cajon v. El Cajon Police Officers' Assn.,
supra, 49 Cal.App.4th at p. 71; see Parsons v. Bristol
Development Co., supra, 62 Cal.2d at p. 866, fn. 2.) As noted,
ante, Probate Code section 21121 requires that we construe all
parts of the instrument in relation to the others to form “a
consistent whole.” And, if the meaning of any part of an
instrument is ambiguous or doubtful, “it may be explained by any
reference to or recital of that part in another part of the
instrument.” (Ibid.; see Colburn v. Northern Trust Co. (2007) 151
Cal. App. 4th 439, 448, fn. 6; Siegel v. Fife (2015) 234 Cal. App. 4th
988, 996.) 34
We observe that, applying these principles, this district has
previously held that there “is no substantial difference between
34 The memorandum, dated January 18, 2011, prepared by
the lawyer who drafted the Trust characterizes article 5.4 as
applying to the “Division of the Remaining Trust Estate”; thus,
the lawyer who drafted the Trust viewed article 5.4 in the same
manner as we describe it in the body of this opinion, i.e., as
dividing the remainder, or residue, of the estate.
44
the words ‘remainder’ and ‘residue,’ ” and that “in construing a
will [or a trust] the aim is to ascertain the meaning of the
testator [or settlor] rather than the meaning of the words used.”
(Estate of Moorhouse (1944) 64 Cal. App. 2d 210, 214-215.)
B. Structure and Terms of the Trust
The principal dispositive provisions of the Trust are set out
in its article 5. After gifting his personal effects to his children
“in such manner as they mutually agree” (art. 5.2), and making
specific pecuniary gifts to family members and others (art. 5.3),
Arthur directed the disposition of the remainder of his trust
estate in a separate paragraph, headed “Division of Remaining
Trust Estate” (art. 5.4), as follows: “As soon as reasonably
practicable after the death of Grantor and after distributions, if
any, pursuant to the provisions of Paragraphs 5.2 and 5.3, and
further subject to the provisions of this Paragraph, the Trustee
shall divide the remaining Trust estate into separate shares as
follows. . . .” In the next four subparagraphs, Arthur allocated
the “Remaining Trust Estate” – by percentages – to his four
children, subject to certain adjustments for outstanding loans,
and in the case of Jenifer and Raymond, the direction to include
in that child’s share “any interest that Grantor or this Trust
directly or indirectly owns in [described real property] . . . .”
Article 5.5 provides: “All estate taxes payable by this Trust
shall be paid by the beneficiaries listed in Paragraph 5.4 above in
direct proportion to their respective percentage shares. Income
taxes payable by any subtrust shall be paid by the beneficiary of
such subtrust.”
Cash flow was to be distributed to each beneficiary
quarterly from his or her share. (Art. 5.6.) Finally, the principal
given to each beneficiary was to be distributed to that beneficiary
45
over 10 years, beginning on the first anniversary of Arthur’s
death. (Art. 5.7.)
In construing the terms of the Trust, as noted, we seek to
ascertain the grantor’s intent by the language of the document as
of the time he signed it. (Estate of Helfman (1961) 193
Cal. App. 2d 652, 655.) Each case depends upon its particular
facts. (Ibid., citing Estate of Henderson (1911) 161 Cal. 353, 357.)
C. Discussion
We do not agree with the probate court’s ruling that the
instruction in article 5.4 that Raymond’s 35 percent share was to
include the Ranch made it “not a residuary gift.” 35 Because the
division directed by article 5.4 was to be made only after all other
gifts have been made, it is clear that article 5.4 was intended to
dispose of the remainder (or residue) of Arthur’s estate. Gifts
which are made from the assets which remain in an estate are
gifts of remainder or residuary interests. This end-stage funding
is entirely consistent with Probate Code section 21117,
subdivision (f), which states: “A residuary gift is a transfer of
property that remains after all specific and general gifts have
been satisfied.” It is also consistent with the case authority cited,
ante.
Most importantly, our construction of article 5.4 carries out
the “intention of the transferor as expressed in the instrument
. . . .” (Prob. Code, §21102, subd. (a).) Had Arthur intended the
gift of the Ranch to be a specific gift, he had the mechanism to so
designate it. Indeed, he had made such a gift to Raymond in
article 5.3; there, he gave Raymond a specific gift, also of real
35 The probate court reached a similar conclusion as to the
Montana property allocated to Jenifer’s share.
46
property, i.e., of the house and land that adjoined the Ranch,
using the following language: “(e) The Trustee shall distribute to
RAYMOND that certain real property . . . .” (We omit the specific
legal description of the land given, that included a home adjacent
to the Ranch.) This gift in article 5.3(e) was unconditional and
specific (as was a gift of a house to Jenifer, also set out in article
5.3), and was made with no language that is either conditional or
equivocal: Neither gift was dependent on any other event.
By contrast, the “gift” of the Ranch to Raymond in article
5.4 was only a funding mechanism for the actual gift – which was
stated as a percentage of the remainder or residue of the Trust
estate. Thus, the gift of the Ranch to Raymond was to occur only
if at the time of the distribution of the remainder of the trust
assets, those assets included the Ranch. (Art. 5.4(b).) What was
not conditional was that Raymond was to receive 35 percent of
the residue regardless of whether the Ranch was part of the
Trust estate: that was a residuary gift to Raymond. 36
This means of expressing the desire that, if the Ranch were
in the estate at the date of distribution, then it was to be used in
funding Raymond’s share of the residue, rendered the gift of the
Ranch an instruction to the Trustee on that with which to fund
the percentage gift which Arthur unequivocally made to
Raymond if the Ranch were an asset of the Trust at that time,
rather than a mandate that Raymond was to receive the Ranch
as well as 35 percent of the remainder or residue of assets in the
Trust on their distribution. Such an instruction is entirely
36 The headings of the two articles of the Trust also suggest a
difference in the nature of the gifts made. Article 5.3 is headed
“Specific Distributions” and article 5.4 is headed “Division of
Remaining Trust Estate.”
47
consistent with Raymond’s long-standing and intense
involvement with Ranch operations. One also must consider that
Raymond receives a substantially greater percentage of the
residue than any other sibling. We would expect that, had
Arthur intended Raymond to also receive the entirety of any
appreciation in the value of the Ranch, Arthur would have
expressly so stated in the Trust.
Setting aside our conclusion that Arthur’s intention was to
make the gifts of the balance of his estate as discussed above (as
expressed in Probate Code section 21102), in the context of
Probate Code section 21117 upon which the parties presented
their arguments to the probate court, the direction in article
5.4(b) (and in article 5.4(c) with respect to Jenifer) concerns how
to fund Raymond’s percentage share of the remainder or residue
and not what specific property to give. In the context of section
21117, the gift to Raymond in article 5.4(b) was a gift of a
35 percent share of the residue within the meaning of Probate
Code section 21117, subdivision (f), and not a specific gift as
defined in subdivision (a) of that statute.
The proper construction of residuary clauses which include
reference to specific property of a decedent has been an issue in
this state for many years. For example, in 1907, our Supreme
Court considered this matter in In re Painter’s Estate. 37 (150 Cal.
37 In Painter’s Estate, the Supreme Court relied in part on
Civil Code section 1357, which defined “specific legacy” as follows:
“A legacy of a particular thing, specified and distinguished from
all others of the same kind, belonging to the testator, is specific; if
such legacy fails, resort cannot be had to the other property of the
testator.” (Former Civ. Code, § 1357, ¶ 1.) (The definition of
“specific gift” now is subdivision (a) of Probate Code section
48
498 (Painter’s Estate).) There, our Supreme Court was called
upon to determine whether a provision in the codicil to the will of
that decedent describing specific properties owned by the
decedent were specific gifts and for that reason not chargeable
with the payment of general legacies. (Id. at p. 503.) Because
the listing of specific properties to be devised in that will was
followed immediately by a statement that those properties were
to be given together with all of the decedent’s other property, the
court determined that they were part of the residue rather than
specific gifts. In reaching this determination, our Supreme Court
stated: “In short, the question is purely one of construction. The
21117.) Paragraph 4 of former Civil Code section 1357 defined a
residuary legacy as follows: “A residuary legacy embraces only
that which remains after all the bequests of the will are
discharged.”
At that time, Civil Code section 1317 provided: “A will is to
be construed according to the intention of the testator.” And
section 1318 provided: “In case of uncertainty arising upon the
face of a will, as to the application of any of its provisions, the
testator’s intention is to be ascertained from the words of the will,
taking into view the circumstances under which it was made,
exclusive of his oral declarations.” (See, Estate of Loescher (1955)
133 Cal. App. 2d 589, 593-594 [“Whether a devise is residuary,
general, specific or administrative depends upon the intention of
the testator as shown by the entire will. [Citations.]”].)” The
statutory definitions of specific and residuary legacies had not
changed significantly from the time of the decision in Painter’s
Estate when Estate of Loescher was decided. (Compare former
Prob. Code, § 161, enacted by Stats. 1931, ch. 281, p. 595; and see
Historical and Statutory Notes, 52 West’s Ann. Prob. Code (2002
ed.) foll. former § 161, p. 129, with Civ. Code, § 1357, extant at
the time of the decision in Painter’s Estate.)
49
testator’s intent is to be determined in each case from a
consideration of the particular language employed. A bequest or
devise of the residue of an estate is general, because such residue
is not ascertainable at the time the will is made. The fact that, in
giving such residue, the testator describes, as included in it or
forming a part of it, certain specific property owned by him, does
not alter the character of the residuary gift.” (Id. at p. 507.)
Confirming this reasoning, the court pointed out that a
legacy is specific only when, if that property is not vested in the
decedent at the time of his or her death, it fails, citing Civil Code
section 1357. 38 (Painter’s Estate, at p. 505.)
The language of the Trust in this case presents an even
clearer statement of the nature of the gift of designated property
than in Painter’s Estate: the gift here is of 35 percent of the
residue, utilizing the Ranch as an asset with which to fund the
gift to Raymond in recognition of his long and close association
with it, but a 35 percent share nonetheless, even if the Ranch is
no longer owned at the time of Arthur’s death.
VII. ALLOCTION OF ASSETS IN THE RESIDUARY
SHARE OF THE TRUST
In resolving Raymond’s Supplemental Objections, the
probate court validated the Trustee’s use of the proceeds from the
sale of the Ranch to calculate and to fund the gifts to be made
pursuant to article 5.4, including Raymond’s 35 percent share. 39
38 See footnote 37, ante.
39 In its August 19, 2015 Order overruling objections, the
probate court concluded that the Ranch was to be valued at $14
million for purposes of distribution of the residue to the Blech
Children – even though it had erroneously concluded it was a
50
While we do not agree with the reasoning of the probate court, we
reach the same result because, as just discussed, Arthur intended
the Ranch merely as a means to fund the gift to Raymond of a
35 percent share of the residue rather than as a separate gift. 40
In his appeal, Raymond elected to adopt the probate court’s
flawed analysis that the gift was a specific gift, doing so as the
means to overturn the probate court’s October 23, 2015 Order
and to obtain a determination on appeal that the Ranch was to be
valued at its date-of-death value. While we find the probate
court’s reasoning flawed in part, we are not persuaded by
Raymond’s arguments that the probate court’s conclusion as to
date of valuation was in error. As Raymond has presented no
other argument warranting reversal, we affirm the probate
specific gift. In that Order, the probate court wrote: “[The
Trustee’s] treatment of the Blech Ranch gift (including valuation
of Blech Ranch at $14 million for purposes of calculating
Raymond Blech’s percentage interest in other Trust assets . . .),
was proper.” That valuation was confirmed in its October 23,
2015 Order in the grant of the Petition.
40 The Trustee advances an additional reason for using date-
of-distribution values. Thus, it points out that article 5.7 of the
Trust requires that distributions to the siblings are to be made
over a 10-year period, and, if Raymond were to die prior to the
end of that term, his residuary share is required to be revalued at
its then “fair market value” and divided among his remaining
siblings. The Trustee then argues that the need for annual
revaluations (and for revaluation should Raymond die prior to
the end of the 10-year term) supports the Trustee’s contention
that it was Arthur’s intent that the assets distributed in the
residue of the estate are to be valued at their fair market value
on the several dates of their distribution rather than on Arthur’s
death.
51
court’s conclusion. (In re Marriage of Arceneaux, supra, 51 Cal. 3d
1130, 1133 [“A judgment or order of a lower court is presumed to
be correct on appeal”]; Munoz v. Olin, supra, 24 Cal.3d at pp. 635-
636.)
VIII. ATTORNEY FEES
Robert, Jenifer and Richard sought and were awarded
attorney fees, costs and expenses, based on the authorization for
recovery of those amounts in paragraph 23 of the 2014
Settlement Agreement. The probate court granted their motions
on January 7, 2016, awarding Robert and Jenifer $83,120, and
Richard $30,869.24. On March 18, 2016, the probate court
awarded Robert and Jenifer an additional $123,331.90.
On appeal, Raymond does not challenge the authority for
awarding such fees; nor does he challenge the reasonableness of
the fee awards made. Instead, he seeks to reverse these awards
only on the basis that he should prevail on the merits of his
appellate arguments. 41 As he has not prevailed, and as he has
41 At argument, counsel for Robert and Jenifer argued that
Raymond had waived this argument by paying the attorney fee
awards and Raymond argued that he did so under compulsion
and thus did not waive, relying on Wisniewski v. Clary (1975) 46
Cal. App. 3d 499, in which the appellant paid attorney fees under
compulsion of a trial court order requiring that they be paid
within 30 days of the order assessing them. (Id. at p. 502.) While
the record in this case does not include any evidence that the
attorney fee awards were ordered to be paid by a date certain or
that payment was made under threat of attachment or other
means of collection, we need not resolve the waiver argument as,
even if Raymond has not waived this contention, it fails as his
appeal is otherwise unsuccessful and he makes no other
argument to support his claim that the amounts awarded are not
due as explained in the text accompanying this footnote.
52
made no other argument to suggest the awards should be
overturned – and therefore waived any such contentions – we
affirm these awards.
DISPOSITION
The October 23, 2015 Order Settling the Trustee’s First
Account, filed October 29, 2014, is affirmed. The Orders entered
on January 7 and March 18, 2016, awarding attorney fees to
Robert and Jenifer, and the Order entered on January 7, 2016,
awarding attorney fees to Richard, are affirmed. All other
appeals are dismissed.
Richard, Robert and Jenifer shall each recover his or her
attorney fees and costs on appeal from Raymond.
CERTIFIED FOR PARTIAL PUBLICATION
GOODMAN, J. *
We concur:
EDMON, P. J. LAVIN, J.
* Retired Judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
53