Stone v. Byers CA5

Filed 3/12/21 Stone v. Byers CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
CRISTINA A. STONE,
F077331
Plaintiff and Appellant,
(Super. Ct. No. 445611)
v.
DOUGLAS BYERS et al., OPINION
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Stanislaus County. Timothy
W. Salter, Judge.
Cristina A. Stone, in pro. per., for Plaintiff and Appellant.
Law Office of Lawrence C. Beaver, and Lawrence C. Beaver, for Defendants and
Respondents.
-ooOoo-
This case involves a dispute over a family trust. Respondents, Douglas Byers and
Kristen Geller, were the successor trustees and primary beneficiaries of the trust.
Following the deaths of respondents’ parents, who were the settlors and original trustees,
all trust assets were distributed among and between respondents. After those
distributions were made, the trust was terminated.
Appellant, Cristina Stone, is the daughter of respondent Douglas Byers. She
claims to be an intended beneficiary who was wrongfully deprived of a share of the trust
assets. The probate court rejected her contentions and entered a judgment in favor of
respondents.
Appellant is a self-represented litigant. Her briefing alleges various procedural
“irregularities” and evidentiary errors. Most of the issues were not raised below and have
been forfeited. The remaining claims fail due to appellant’s inability to demonstrate
reversible error. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2002, respondents’ parents created what was formally entitled “The Jon and
Kay Byers Family Trust, dated November 25, 2002, Jon L. Byers and Kay M. Byers,
Trustors and Jon L. Byers, Kay M. Byers, Douglas B. Byers, and/or Kristen L. Byers,
Trustees”1 (bold omitted; hereinafter “the trust”). As the title indicates, Jon and Kay
Byers were the settlors and original trustees of the trust. Respondents were designated as
the trust’s “Successor Trustees” and “Primary Beneficiaries.”
The main trust document consists of 48 numbered pages, including signature
pages. The settlors reportedly drafted the instrument without the assistance of legal
counsel. Each page of the main document contains a three-line footer, which reads:
“Byers Revocable Living Trust [¶] © Copyright The Estate Plan ® 2002 All Rights
Reserved. [¶] Page [_].”
1 Kristen L. Byers is the maiden name of respondent Kristen Geller.
2.
The 48-page document contains references to “Schedule C.” The existence of
multiple documents labeled “Schedule C” is undisputed, but the parties disagree over
whether those items were physically attached to the main document. Two of the
additional pages had the same footer as the main document and were marked as “Page
51” and “Page 52,” but those pages were almost entirely blank. A three-page document,
which the probate court accurately described as being written like a separate trust,
identified appellant by name as one of several “Eligible Beneficiaries.” Subsequent
references in this opinion to “Schedule C” are to the three-page document.
Schedule C is unsigned, undated, and contains no initials or handwriting. Unlike
the other documents, there is no footer text or page numbers. Schedule C states, in
relevant part, “This Trust is established for the purpose of establishing an extended
family solidarity, to fund charitable giving and encourage experiences and behavior
among our heirs that Kay [Byers] and [Jon Byers] have come to value. [¶] The Trust is
to be funded initially with the proceeds of life insurance on Jon’s life.” (Italics added.)
Jon Byers died in 2003. There was a $250,000 insurance policy on his life, but the
beneficiary was the surviving settlor, Kay Byers, not the trust. Kay Byers used the life
insurance proceeds to purchase a single premium annuity. She designated herself as the
annuitant and respondents as her beneficiaries.
Kay Byers died in 2010. Following her death, respondents obtained legal advice
regarding their rights and obligations under the trust. In reliance on the advice of
counsel, respondents distributed all trust assets to themselves. Once the value of the trust
dropped below a certain amount, respondents invoked a provision allowing them to
terminate it.
In 2014, appellant filed a petition to establish the existence of the trust and her
rights as a beneficiary thereunder. (See Prob. Code, § 17200 et seq.) She also sought to
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compel an accounting. (Id., §§ 16060 et seq., 17200, subd. (b)(7)(C).) All claims were
dependent upon the validity and effect of Schedule C.
Appellant’s minor children were originally named as additional petitioners. This
was done in further reliance upon Schedule C, which identified as “Eligible
Beneficiaries” “all of the children born of the Byers Family Blood Line.” An amended
petition, filed in 2015, identified appellant’s husband as the children’s guardian ad litem.
However, the husband was not an attorney, and the probate court eventually dismissed
the children from the action because they were not represented by counsel. That
dismissal order is the subject of a claim in this appeal.
A bench trial was held on November 1, 2017. The proceedings lasted
approximately two hours and concluded on the same date. Appellant attempted to prove
that the provisions of Schedule C reflected the testamentary intent of settlor Jon Byers.
Jon Byers’s sister, Susan Byers, and his friend and business associate, Sudhir Sahni,
testified on appellant’s behalf. Appellant also examined respondent Kristen Geller as an
adverse witness.
Respondents called one witness: a Stanislaus County probate lawyer named
Ronald William Hillberg. Attorney Hillberg testified as both a percipient and expert
witness. He had personal knowledge of certain facts from having served as legal counsel
for respondents in earlier stages of the case. He also may have had a prior attorney/client
relationship with settlor Kay Byers, but the record is not entirely clear on that point.
Regarding his expert qualifications, the witness testified to being “a certified specialist in
estate planning, probate, and trust law.”
As discussed in the expert’s testimony, the death of Kay Byers triggered a
provision in the 48-page document requiring division of the trust assets “into equal
separate shares to provide one (1) share each for Douglas B. Byers and Kristen L. Byers,
the Primary Beneficiaries of the Trust Estate.” This effectively created two subtrusts.
4.
The subtrusts were to be “held, managed and distributed as provided in [a separate]
provision entitled ‘Distribution of Trust Assets.’” (Bold emphasis omitted.)
Under the “Distribution of Trust Assets” provision, the subtrusts were to be
“distributed subject to the provisions and specifications of the ‘Schedule C’ attached to
[the 48-page document].” Attorney Hillberg testified that no additional pages were
attached to “the actual signed trust.” However, “in the booklet that came along with the
whole trust document,” there was a “binder labeled ‘Schedule C’ ” containing the
aforementioned multiple documents bearing the same label.
As noted above, the provisions of Schedule C refer to a “Trust” that was “to be
funded initially with the proceeds of life insurance on [Jon Byers’s] life.” However, the
beneficiary of the life insurance policy was Kay Byers, and she used those proceeds to
purchase an annuity. Instead of leaving the remainder of the annuity to the trust, she
named respondents as her beneficiaries. Therefore, all proceeds from Jon Byers’s life
insurance policy were distributed outside of the trust. Attorney Hillberg opined that this
was permissible “because Kay Byers had complete freedom to use those funds in any
way she chose.”
Because Schedule C was not funded pursuant to its express terms, it was attorney
Hillberg’s professional opinion that “it never came to fruition.” He had thus counseled
respondents to act pursuant to other provisions in the 48-page document. One such
provision authorized respondents to take distributions from their respective subtrusts “for
the furtherance of worthwhile personal, professional or business goals,” including
“reasonable sums for a partial or complete down-payment on a home.” Another
provision authorized their termination of the trust and/or any subtrust if its “fair market
value” dropped to $15,000 or less.
The probate court ruled in favor of respondents on two alternative grounds. The
judgment states: “[Schedule] C, which petitioner maintained was part of the trust, lacks
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sufficient foundation and authentication to be considered part of the trust. However, even
if the same was to be authenticated, it was a dry trust in that it was never funded and that
evidence educed found [sic] life insurance proceeds went elsewhere than to the funding
of the trust. Accordingly, the Court finds in favor of respondents as to all causes of
action and holds this matter as dismissed with prejudice.”2
Appellant unsuccessfully moved for a new trial. The notice of appeal was timely
filed in April 2018.
DISCUSSION
Standard of Review
“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.” (In re Marriage
of Arceneaux (1990) 51 Cal. 3d 1130, 1133.) Questions of law are reviewed de novo,
meaning the appellate court exercises its independent judgment to resolve legal issues
(e.g., the interpretation of statutory language). (Imperial Merchant Services, Inc. v. Hunt
(2009) 47 Cal. 4th 381, 387; Rael v. Davis (2008) 166 Cal. App. 4th 1608, 1617.)
Discretionary trial court rulings are reviewed under the abuse of discretion standard; such
rulings are overturned “only upon a showing of a ‘clear case of abuse’ and ‘a miscarriage
of justice.’ ” (Hernandez v. Superior Court (1992) 9 Cal. App. 4th 1183, 1190, quoting
Blank v. Kirwan (1985) 39 Cal. 3d 311, 331.)
2 According to California case law, a “dry trust” is “a trust wherein the trustees
would have no actual responsibilities as such and no active duties to perform.” (Estate of
Shaw (1926) 198 Cal. 352, 363; accord, Bariffi v. Longridge Development Co. (1958) 156
Cal. App. 2d 583, 590-591.) However, the term is sometimes used to describe an
“ ‘empty’ trust,” i.e., “a trust formed without assets.” (Draper v. Colvin (8th Cir. 2015)
779 F.3d 556, 562, fn. 3.) The probate court clearly intended for the latter definition to
apply. Its oral ruling at the conclusion of trial included these statements: “[E]ven if you
were to consider this a separate trust and it was duly executed, which this one is not, you
basically have here a dry trust. Schedule C was never funded. And, therefore, it lacks
any effectiveness.… [B]ecause it was never funded, at best it’s a dry trust.”
6.
Self-represented litigants are held to the same standards and procedural rules as
parties represented by counsel. (Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 984-985;
Nelson v. Gaunt (1981) 125 Cal. App. 3d 623, 638-639.) Appellate briefs must state each
point under a separate heading or subheading (Cal. Rules of Court, rule 8.204(a)(1)(B)),
and issues not presented in this manner are considered forfeited (Keyes v. Bowen (2010)
189 Cal. App. 4th 647, 656). “An appellate court is not required to examine undeveloped
claims, nor to make arguments for parties.” (Paterno v. State of California (1999) 74
Cal. App. 4th 68, 106.) “These well-settled rules of appellate practice are not mere
technicalities. They ensure that opposing parties are fairly apprised of contentions so as
to afford a full and fair opportunity to respond.” (Golden Door Properties, LLC v.
County of San Diego (2020) 50 Cal. App. 5th 467, 555.)
Appellant does not directly challenge the trial court’s interpretation of the trust
instrument. She seeks the remedy of a new trial based on alleged procedural and
evidentiary errors. Our review is limited to those specific claims, and we address them in
the order in which they are presented in appellant’s opening brief.
Testimony of Attorney Hillberg
Additional Background
Respondents were represented by attorney Hillberg during the first year of the
litigation. In July 2015, appellant filed an ex parte application seeking to a continue the
trial date. In a written response, respondents made these statements: “Respondents agree
that the trial date needs to be extended. In a meeting on July 6, 2015, the Petitioners
advised the attorney for Respondents [i.e., Hillberg] that they intended to call him as a
witness in this matter. Accordingly, it is necessary for Respondents to secure new trial
counsel, which they are in the process of doing.”3
3 In her briefing below and on appeal, appellant has alleged that Hillberg was
“disqualified” and “removed” from the case by the probate court. She makes numerous
references to language in a minute order from August 21, 2015, which says, “Mr.
7.
In September 2015, Lawrence C. Beaver replaced Hillberg as respondents’
attorney of record. In November 2017, Hillberg testified as a witness on respondents’
behalf. On the morning of trial, just as appellant was about to begin her case-in-chief,
respondents sought permission to call Hillberg out of order. The reason given was a
personal matter involving the hospitalization of a family member.
The trial judge said, “I’ll listen to any objection [appellant] may wish to state on
this. However, I think under the circumstances, you know, we do often grant the right to
call a witness out of order, especially if they’re an expert witness, and in this case it
sounds like there’s a very good reason for that.” Appellant replied, “Sure. I understand.
That’s fine.” Consequently, even though he was a defense witness, Hillberg was the first
person to testify at trial. Appellant did not object to any portion of his testimony.
Issues and Analysis
Appellant’s opening brief sets forth a litany of grievances regarding Hillberg’s
involvement in the trial. Her main complaint is that he testified out of order, which
allegedly tainted the trial judge’s view of the case. Appellant also contends that Hillberg
should have been precluded from testifying due to a “conflict of interest” arising from his
prior representation of respondents and because he “wasn’t an impartial expert.” In
addition, respondents are accused of failing to timely designate Hillberg as an expert
witness.
A trial court “exercises discretion in ruling on a request to call a witness out of
order, and its ruling will not be disturbed absent a clear showing of abuse of discretion.”
(Rayii v. Gatica (2013) 218 Cal. App. 4th 1402, 1413.) However, “a reviewing court
Hillberg shall have counsel to represent him by the next hearing.” The minute order
pertained to the ex parte application, there is no corresponding transcript of the
proceeding, and we cannot ascertain what this admittedly puzzling statement means.
However, it should be noted that there are absolutely no findings in the record of any
impropriety by attorney Hillberg. Furthermore, the reasons for his substitution out of the
case are irrelevant to our analysis of the claims on appeal.
8.
ordinarily will not consider a challenge to a ruling if an objection could have been but
was not made in the trial court.” (In re S.B. (2004) 32 Cal. 4th 1287, 1293.) Appellant
not only failed to object to Hillberg testifying out of order, she agreed to it. Therefore, all
claims based on the timing of Hillberg’s testimony are forfeited and will not be
considered.
Appellate courts often have discretion to review forfeited claims, but such
discretion “should be exercised rarely and only in cases presenting an important legal
issue.” (In re S.B., supra, 32 Cal.4th at p. 1293.) We have no discretion to consider
forfeited issues regarding the admission or exclusion of evidence. (People v. Williams
(1998) 17 Cal. 4th 148, 161, fn. 6.) Evidence Code section 353 precludes reversal of a
judgment based on the erroneous admission of evidence unless the record shows there
was “an objection to or a motion to exclude or to strike the evidence that was timely
made and so stated as to make clear the specific ground of the objection or motion.” (Id.,
subd. (a); accord, People v. Ramos (1997) 15 Cal. 4th 1133, 1171.)
All of appellant’s claims regarding Hillberg ultimately concern the admission of
his testimony at trial. Appellant made no objections to preserve those issues for appellate
review. For that reason, her claims fail. (Evid. Code, § 353, subd. (a); see In re Seaton
(2004) 34 Cal. 4th 193, 198 [forfeiture doctrine “applies to claims based on statutory
violations, as well as claims based on violations of fundamental constitutional rights”];
Heiner v. Kmart Corp. (2000) 84 Cal. App. 4th 335, 346 [failure to timely object to expert
testimony results in forfeiture].)
Alleged Judicial Bias
Appellant contends the probate court “erred by prejudicing the evidence presented
in Mr. Hillberg’s testimony demonstrating prejudice and an unwillingness to scrutinize
all evidence prior to [her] even presenting [her] case[,] thereby denying [her] the right to
a full and fair trial guaranteed by the 5th and 14th amendments of the Constitution.”
9.
(Bold and some capitalization omitted.) To the best of our understanding, appellant is
alleging judicial bias and/or misconduct. Her arguments focus on statements by the trial
judge immediately following the testimony of attorney Hillberg:
“All right. So, Ms. Stone, you may call witnesses. [¶] However, I have to tell
you, just based on what has been testified to and the provisions of [the 48-page trust
document] and Exhibit C, it’s difficult for me to see how you can possibly prevail in this
action since you’re not a named beneficiary. You’re just a contingent beneficiary in the
event of your father’s death. Your father hasn’t died, and he and his sister, I guess it is,
are the two main beneficiaries of this trust. [¶] So can you explain to me how you’re
going to overcome that?”4
Claims of judicial bias are forfeited if not asserted during the trial court
proceedings. (People v. Farley (2009) 46 Cal. 4th 1053, 1110; Moulton Niguel Water
Dist. v. Colombo (2003) 111 Cal. App. 4th 1210, 1218.) Likewise, “ ‘[a]s a general rule,
judicial misconduct claims are not preserved for appellate review if no objections were
made on those ground[s] at trial.’ ” (People v. Geier (2007) 41 Cal. 4th 555, 613.)
Forfeiture aside, “[e]xpressions of opinion uttered by a judge, in what he conceived to be
a discharge of his official duties, are not evidence of bias or prejudice. [Citation.]
‘[When] the state of mind of the trial judge appears to be adverse to one of the parties but
is based upon actual observance of the witnesses and the evidence given during the trial
of an action, it does not amount to that prejudice against a litigant which disqualifies him
4 Exhibit C was a document pertaining to the annuity purchased by Kay Byers with
the life insurance proceeds from Jon Byers’s death. The remarks about appellant being a
contingent beneficiary were in reference to a provision on page 31 of the 48-page trust
document, which states, “In the event Douglas B. Byers dies before receiving Douglas B.
Byers’ entire share, … the undistributed balance of Douglas B. Byers’ share shall be
allocated to create one share for each living child and one share for each group composed
of the living issue of a deceased child of the deceased Primary Beneficiary who are all
contingent beneficiaries of Douglas B. Byers .…”
10.
in the trial of the action.’ ” (Jack Farenbaugh & Son v. Belmont Construction, Inc.
(1987) 194 Cal. App. 3d 1023, 1031-1032.) Also, a judge sitting as the trier of fact has
leeway to apprise a self-represented litigant of what the judge perceives to be the
dispositive issues in the case. (See People v. Redmond (1969) 71 Cal. 2d 745, 758, [“it is
a common practice in both civil and criminal cases for trial judges, by advice and
suggestion, to assist persons who represent themselves”]; see generally, Rutherford v.
Owens-Illinois, Inc. (1997) 16 Cal. 4th 953, 967 [trial court has inherent power to
“exercise reasonable control over all proceedings connected with pending litigation . . . in
order to insure the orderly administration of justice”].) Pursuant to these authorities, we
reject appellant’s claims.
Dismissal of Other Named Parties
As discussed, appellant’s petition named her minor children as parties to the case.
She alleges that her husband was “appointed” as the children’s guardian ad litem, but the
record citation she provides is not corroborative. Regardless, a guardian ad litem “is not
a party to the action, but merely a party’s representative.” (In re Christina B. (1993) 19
Cal. App. 4th 1441, 1453.) “ ‘ “He is like an agent with limited powers.” ’ [Citations.]
‘The duties of a guardian ad litem are essentially ministerial.’ ” (Ibid.)
Long before trial, an issue arose regarding the ability of appellant and/or her
husband to represent the children’s interests without retaining legal counsel. A minute
order from August 2015 states, “The children must have an attorney represent them, if
not this case will not go to trial.” A minute order dated October 29, 2015 reads:
“[Appellant’s husband] has no standing. Minor children need to obtain counsel.”
Another minute order issued one year later says, “Children need an attorney before this
matter will be set for trial.”
In June 2017, on the probate court’s own motion, appellant’s children were
ordered dismissed from the case for not having legal representation. Appellant claims
11.
this ruling violated her own constitutional rights, as well as those of her children. She
relies on Code of Civil Procedure section 376 (section 376), but her arguments are
confusing. In one instance, she contends the statute entitles a parent “to represent their
chil[d]ren’s interests.” Elsewhere she complains of not being able to amend her petition
to add her husband as a party, but we find nothing in the record to suggest that permission
for such an amendment was ever requested. Appellant’s argument to the probate court
was that section 376 allowed her and/or her husband “to represent the interests of the
children in this action.” (Bold omitted.)
Section 376 allows the parents of a minor child to “maintain an action for injury to
the child caused by the wrongful act or neglect of another.” (Code Civ. Proc., § 376,
subd. (a).) It does not authorize a nonattorney to provide legal representation for the
child. “[N]o person who is not an attorney may represent another in a legal proceeding.”
(Torres v. Friedman (1985) 169 Cal. App. 3d 880, 887; accord, Bus. & Prof. Code, § 6125
[“No person shall practice law in California unless the person is an active licensee of the
State Bar.”].)
Even if appellant could show error, the claim would fail for lack of prejudice.
(See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; F.P. v. Monier (2017) 3 Cal. 5th
1099, 1107 [explaining that the California Constitution “expressly preclude[s] reversal
absent prejudice”].) To establish prejudice, appellant must show “that a different result
would have been probable if [the] error … had not occurred.” (Code Civ. Proc., § 475.)
Put differently, an error is harmless if it is “not reasonably probable [the appellant] would
have obtained a more favorable result in its absence.” (Soule v. General Motors Corp.
(1994) 8 Cal. 4th 548, 570.)
The claims of appellant’s children were indistinguishable from her own insofar as
they hinged on the validity and effect of Schedule C. There is simply no basis upon
which to conclude the probate court would have interpreted the trust instrument
12.
differently but for the children’s dismissal from the case. The crux of appellant’s
argument is that her husband knew the case better than she did and could have more
persuasively argued her position to the judge. Appellant seems to believe her husband
would have had an advocacy role at trial as the guardian ad litem, but she is mistaken.
He would not have been a party to the action, and “a nonattorney guardian ad litem
cannot appear in propria persona in a representative capacity.” (J.W. v. Superior Court
(1993) 17 Cal. App. 4th 958, 967; see id. at pp. 964-968 [discussing relevant authority and
rejecting the argument “that once a guardian ad litem is appointed there is no need to hire
legal counsel even if the guardian ad litem is not an attorney.”].) In summary, appellant
fails to demonstrate error or prejudice.
Rulings on Objections
Appellant argues that her constitutional rights were violated when the trial judge
allegedly prohibited her from “talk[ing] about the wording of the trust.” According to
her, this was the practical effect of the judge “rul[ing] that ‘the trust speaks for itself.’ ”
She is referring to four instances of the judge sustaining objections based in whole or in
part on the assertion that a document “speaks for itself.” We address the objections in
chronological order.
Objection No. 1
1. Background
The following exchange occurred during appellant’s direct examination of witness
Susan Byers:
“[Q.] Okay. Were you present at a meeting with Jon [Byers] and the Byers
family members regarding the trust early on?
“[A.] There was a family meeting in the fall of 2002, in November.
“[Q.] And who was present at that meeting?
“[A.] His children, Douglas and Kristen, and [various relatives of respondents].
13.
“[Q.] Did Jon—
“[A.] And myself.
“[Q.] And yourself. Okay. Did Jon pass out any documents regarding the trust
on that day?
“[A.] He passed out a couple of pages regarding the trust. And I don’t have a
copy. But he -- he in broad terms addressed his intention and wishes.
“[Defense counsel:] I would have the same objection, Your Honor. Previously
the document was going to speak for itself.
“[Trial Judge:] Well—
“[Defense counsel:] There isn’t any allegation of fraud or undue influence or
anything. Quite the contrary.
“[Trial Judge:] All right. Yeah, sustained.”
2. Analysis
The attachments to appellant’s original and amended petitions include a sworn
declaration by the same witness, Susan Byers. In pertinent part, the declaration
references the meeting she was asked about at trial. It states, “Jon passed out a document
on that day detailing some of the information contained in the trust and outlining his
wishes.” At trial, as quoted above, appellant asked if Jon Byers had passed out any
documents “regarding the trust.” The witness used the same phrase in her response.
Therefore, the subject matter of the question and answer was not the trust instrument, but
some other document containing statements about the trust.
An objection that a document “ ‘speaks for itself’ ” alludes to the secondary
evidence rule, formerly known as the “ ‘best evidence’ ” rule. (Meadows v. Lee (1985)
175 Cal. App. 3d 475, 490; see Hart v. Keenan Properties, Inc. (2020) 9 Cal. 5th 442, 450.)
The principle is codified in Evidence Code section 1523: “Except as otherwise provided
by statute, oral testimony is not admissible to prove the content of a writing.” (Id., subd.
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(a).) The proponent of such oral testimony, i.e., secondary evidence, has the burden of
showing the testimony is admissible. (See Evid. Code, §§ 400, 403, 1523, subds. (b)-
(d).) Secondary evidence “must comply with the rules governing the admissibility of
evidence generally, including relevance (Evid. Code, § 351) and the hearsay rule (id.,
§ 1200 et seq.).” (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal. 4th
1059, 1070, fn. 2.)
In light of appellant’s attempt to elicit testimony regarding the content of a
writing, a secondary evidence objection was warranted and appropriately sustained.
Appellant made no effort to refute the objection with an offer of proof concerning the
requirements for admissibility or the witness’s anticipated testimony on the subject. (See
Evid. Code, § 354; People v. Schmies (1996) 44 Cal. App. 4th 38, 53 [“An offer of proof
should give the trial court an opportunity to change or clarify its ruling and in the event of
appeal would provide the reviewing court with the means of determining error and
assessing prejudice.”].) Therefore, neither error nor prejudice have been shown.
Objection No. 2
1. Background
Appellant’s second witness, Sudhir Sahni, testified that he is a “chartered life
underwriter,” and certified financial planner. He had both a professional and personal
relationship with settlor Jon Byers. Sahni hired Byers to work for him at a life insurance
company in the 1970s, and they became friends over time. Prior to his death, Byers
discussed his testamentary intentions with Sahni. The relevant portion of Sahni’s
testimony is as follows:
“[A.] So later on then he established a trust, and then he read me the language and
he asked me, he said, ‘What do you think?’
I said, ‘Sounds fine to me.’
15.
And I emphasized -- what I really emphasized with him was that most
living trusts are irrevocable trusts. They -- there has to be - - the key thing
that you need to emphasize with your children is there has to be an
accounting every 120 days, six months, or whatever, but on a regular basis
so all the beneficiaries know as to where the moneys are.
“[Q.] Okay. In your professional experience, do you believe that I was entitled to
distributions as a beneficiary?
“[Defense counsel:] Objection, Your Honor. Calls for speculation.
“[A.] I didn’t get that.
“[Trial Judge:] Excuse me, sir. There’s been an objection.
“[Defense counsel:] He’s not an expert. He has not reviewed the trust. He’s
being called upon to give an expert opinion. And further --
“[Trial Judge:] Sustained.
“[Defense counsel:] -- the document speaks for itself.
“[Trial Judge:] Sustained.”
2. Analysis
Appellant argues that Sahni should have been allowed to answer the question
given his “relationship with Jon Byers in creating the trust.” However, Sahni was asked
to provide an opinion based on his “professional experience,” i.e., to testify in an expert
capacity. Because the trial court sustained an objection based on the witness’s lack of
expert qualifications, the subsequent “document speaks for itself” objection was
superfluous. If the earlier objection had merit, any error in sustaining the latter objection
was harmless. Rulings on evidentiary objections, including those concerning the
admission of proposed expert testimony, are reviewed for abuse of discretion. (People v.
Chavez (1985) 39 Cal. 3d 823, 828; People ex rel. Lockyer v. Sun Pacific Farming Co.
(2000) 77 Cal. App. 4th 619, 639.)
16.
To testify as an expert, a witness must have special knowledge, skill, experience,
training, or education in the subject area of his or her proposed testimony. (Evid. Code,
§ 720, subd. (a).) “Against the objection of a party, such special knowledge, skill,
experience, training, or education must be shown before the witness may testify as an
expert.” (Ibid.) “[A]n expert’s qualifications ‘must be related to the particular subject
upon which he is giving expert testimony. Qualifications on related subject matter are
insufficient.’ ” (People v. Chavez, supra, 39 Cal.3d at p. 828.)
“Whether a particular subject is a proper one for expert opinion and whether a
particular expert is qualified to give an opinion on that subject are closely related issues.
An expert is permitted to offer an opinion on ‘a subject that is sufficiently beyond
common experience that the opinion of an expert would assist the trier of fact.’ ” (People
v. Mayfield (1997) 14 Cal. 4th 668, 766, quoting Evid. Code, § 801, subd. (a).)
Appellant’s witness was asked to provide his own interpretation of the trust based on his
“professional experience” in the life insurance industry and as a financial planner. It was
clearly within the probate court’s discretion, sitting as the trier of fact, to conclude the
witness was not qualified to render an expert opinion and/or that such testimony would
not be of material assistance. Therefore, the objection was properly sustained.
Objection No. 3
1. Background
Appellant’s case-in-chief concluded with the examination of respondent Kristen
Geller as an adverse witness (see Evid. Code, § 776). Appellant contends the objection in
this quoted exchange was erroneously sustained:
“[Q.] In the trust, use of IRS user tax identification, page two, paragraph one,
does the trust state that as long as both trustors are living, the trust is
revocable?
“[Defense counsel:] Your Honor --
17.
“[A.] I don’t think I can answer that.
“[Defense counsel:] I would object as the document speaks for itself.
“[Trial Judge:] Sustained. The trust speaks for itself.”
2. Analysis
Appellant’s question called for testimony about the content of a writing and thus
implicated the secondary evidence rule. (Evid. Code, § 1523, subd. (a).) As the
proponent of the evidence, it was appellant’s burden to show the testimony would be
admissible under an exception to the rule. (See id., §§ 400, 403, 1523, subds. (b)-(d).)
She failed to do so.
Even if error could be shown, there is no indication of prejudice. The question
called for a yes or no response. The witness answered before the objection was made,
and appellant does not explain how the response might have altered the outcome of the
case had the objection been overruled.
Appellant believes the irrevocability of the trust during the period between Jon
Byers’s death and Kay Byers’s death is important because it allegedly contradicts certain
testimony by attorney Hillberg. However, the issue here is the testimony of respondent
Geller. Shortly before the objection and ruling in question, Geller answered “No” when
she was asked if Kay Byers had ever revoked or modified the trust during her lifetime.
Appellant was not deprived of the opportunity to present her theory of the case.
She could have articulated her position and reasoning during closing argument, but for
whatever reason her remarks were brief and generalized. Again, neither error nor
prejudice have been shown.
Objection No. 4
Appellant asked respondent Geller, “Did Kay [Byers] intend for the trust to be the
recipient of all of their assets?” Defense counsel objected: “The document speaks for
itself.” The objection was sustained.
18.
In this instance, the objection should have been overruled. Appellant was not
seeking to prove the content of a writing through oral testimony. She was inquiring of
the witness’s knowledge about Kay Byers’s testamentary intent. However, it is not
reasonably probable that the case would have been decided differently but for the error.
Appellant’s question called for a yes or no answer, but it was ambiguous and
misguided. The outcome of the trial did not depend on whether the settlors had intended,
at some unspecified point in time, to leave their assets to “the trust.” The dispositive
issues were whether the settlors intended to create and fund Schedule C, and whether
Schedule C was ever actually funded. Because the excluded testimony would not have
addressed those issues, the error was harmless.
Allegations of Unfair Surprise
Appellant assumes the probate court’s conclusion that Schedule C lacked
sufficient foundation was directly connected to attorney Hillberg’s testimony that it was
not physically attached to “the actual signed trust.” In her final claim on appeal, she
alleges “[t]he assertion that schedule C was not a part of the trust was never presented
prior to the trial or in discovery or in [respondents’] trial brief that was filed.”
Respondents’ reliance on an a previously undisclosed theory is said to have violated
appellant’s constitutional rights.
If appellant is challenging the admission of Hillberg’s testimony, the claim is
forfeited and cannot be considered. (See Evid. Code, § 353.) She did raise the issue of
surprise in her motion for new trial, but none of the claims on appeal are based on the
denial of that motion. In any event, “the ‘right to a new trial on the ground of surprise is
waived if, when the surprise is discovered, it is not made known to the court, and no
motion is made for a mistrial or continuance of the cause.’ ” (Kauffman v. De Mutiis
(1948) 31 Cal. 2d 429, 432.)
19.
If appellant could somehow overcome the forfeiture problem, she would not be
able to establish prejudice. The judgment states that “even if” a contrary finding had
been made regarding the foundational issue, respondents would have prevailed on other
grounds. In other words, appellant would not have obtained a more favorable result in
the absence of the alleged error.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(5).)
SMITH, J.
WE CONCUR:
HILL, P.J.
SNAUFFER, J.
20.