Chui v. Chui

Filed 3/28/22 (unmodified opinion attached)
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
BENJAMIN TZE-MAN CHUI, B306918
as Trustee, etc., et al.
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. BP154245)
v. ORDER MODIFYING
OPINION AND DENYING
CHRISTINE CHUI, Individually PETITIONS FOR REHEARING
and as Personal Representative, (NO CHANGE IN JUDGMENT)
etc.,
Defendant and Appellant;
MICHAEL CHUI, a Minor, et al.,
Appellants;
ESTHER SHOU MAY CHUI
CHAO et al.,
Respondents.
THE COURT:
The opinion in the above-entitled matter filed on March 2,
2022 is modified as follows:
On page 17, part F of the Factual and Procedural Summary,
a footnote is inserted at the end of the following sentence in the
second paragraph of that section: “On July 18, 2019, the court
granted Christine’s motion and denied Chen’s petition for approval
of the first GAL agreement.” The inserted footnote reads as follows:
In ruling on Christine’s motion, the court
made findings unfavorable to Chen and the
co-trustees. Christine relied on these findings in
subsequent proceedings in the trial court. In rejecting
such reliance, the trial court explained that its prior
rulings were “interim rulings” it had made without
having “considered all relevant considerations,” and
which it had discretion to change in light of “new
information, whether evidence or experience with
the parties.”
On appeal, Christine and the Minors rely on
the same interim rulings the trial court ultimately
rejected. As the trial court recognized, however, it had
the inherent authority to change its interim rulings
(Darling, Hall & Rae v. Kritt (1999) 75 Cal.App.4th
1148, 1156) and explicitly exercised its discretion in
doing so. We do not, therefore, consider them.
This modification does not constitute a change in the
judgment.
Appellants Christine Chui’s and Michael Chui’s petitions for
rehearing filed on March 17, 2022 are denied.
_______________________________________________________________
ROTHSCHILD, P. J. CHANEY J. BENDIX, J.
2
Filed 3/2/22 (unmodified opinion attached)
CERTIFIED FOR PARTIAL PUBLICATION 1
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
BENJAMIN TZE-MAN CHUI, B306918
as Trustee, etc., et al.
(Los Angeles County
Plaintiffs and Respondents,
Super. Ct. No. BP154245)
v.
CHRISTINE CHUI, Individually
and as Personal Representative,
etc.,
Defendant and Appellant;
MICHAEL CHUI, a Minor, et al.,
Appellants;
ESTHER SHOU MAY CHUI
CHAO et al.,
Respondents.
1Pursuant to California Rules of Court, rules 8.1105(b) and
8.1110, this opinion is certified for publication with the exception
of parts A, B.1, B.2, B.3, B.4, B.5, B.7, B.8, C.2, C.3, C.4, C.5, D, E.2,
and F of the Discussion.
APPEAL from orders of the Superior Court of Los Angeles
County, David J. Cowan, Judge. Affirmed.
Bohm Wildish & Matsen and James G. Bohm for Defendant
and Appellant Christine Chui.
Ambrosi & Doerges, Mary E. Doerges; Karcher Harmes and
Kathryn Karcher for Appellant Michael Chui.
Law Offices of Michael S. Overing, Michael S. Overing and
Edward C. Wilde for Appellant Jacqueline Chui.
Willkie Farr & Gallagher, Alex M. Weingarten, Eric J.
Bakewell and Sean P. Hanle for Plaintiff and Respondent Benjamin
Chui.
Glaser Weil Fink Howard Avchen & Shapiro, Miriam J.
Golbert and James T. Grant for Plaintiff and Respondent Margaret
Tak-Ying Chui Lee.
Oldman, Cooley, Sallus, Birnberg, Coleman & Gold and
Justin B. Gold for Respondent Esther Shou May Chui Chao.
Hinojosa & Forer, Jeffrey Forer and Shannon H. Burns for
Respondent Jackson Chen.
McBride Law Group and Julia C. McBride for Respondents
Helena Chang Chui and Ruth Chang.
________________________________
In proceedings under the Probate Code concerning the
administration of a trust, the co-trustees and a beneficiary of the
trust filed petitions under Probate Code section 850 2 alleging that
Christine Chui misappropriated trust assets and committed elder
abuse against the trustor. On the day set for trial on the petitions,
2Unless otherwise indicated, all undesignated statutory
references are to the Probate Code.
2
the litigants settled and recited the terms before the court. The
terms affecting Christine’s minor children—Jacqueline and
Michael 3—who are beneficiaries under the trust, were subject to
the approval of their guardian ad litem, Jackson Chen, and the
court. Chen, on behalf of the Minors, subsequently entered into
an agreement with the co-trustees and certain trust beneficiaries,
but not Christine (the first GAL agreement). The first GAL
agreement recited Chen’s approval of the oral settlement agreement
and set forth additional terms.
Christine sought to cancel and repudiate the agreements
through a variety of procedural methods. The court granted the
co-trustees’ motion to enforce the oral settlement agreement under
Code of Civil Procedure section 664.6, but denied Chen’s petition
for approval of the first GAL agreement. Chen, the co-trustees,
and certain trust beneficiaries—but not Christine—subsequently
entered into a second agreement (the second GAL agreement).
Over Christine’s objections, the court granted Chen’s petition to
approve that agreement. The court also denied Christine’s petition
to remove Chen as the Minors’ guardian ad litem in the trust
litigation and granted Chen’s petition to be appointed the Minors’
guardian ad litem in related probate cases.
Christine and the Minors appealed, challenging the orders
(1) enforcing the oral settlement agreement; (2) granting Chen’s
petition to approve the second GAL agreement; (3) appointing
Chen as the Minors’ guardian ad litem in certain probate cases;
3 Some of the parties have the same surname. To avoid
confusion and to enhance the opinion’s readability, we will refer to
the parties by their first names. We mean no disrespect. We will
also refer to Jacqueline and Michael collectively at times as the
Minors.
3
and (4) denying Christine’s motion to remove Chen as the Minors’
guardian ad litem.
For the reasons set forth below, we affirm the court’s orders.
FACTUAL AND PROCEDURAL SUMMARY
A. The Trust
King Wah Chui (King) and Chi May Chui (May) had three
children: Robert, Margaret, and Esther.
Robert married Helena Chui in 1974. They had one child,
Benjamin. Robert and Helena divorced in 2002.
Robert married Christine in March 2003. They had two
children, Jacqueline (born March 2003) and Michael (born May
2004).
In 1988, King and May established a revocable trust (the
Trust). The assets of the Trust consist primarily of interests in
residential apartment complexes and related business entities,
other real property, and financial accounts.
After May died in March 2004, the Trust was divided into
three subtrusts: Trust A, Trust B, and Trust C. 4 Trust B and
Trust C were irrevocable. Among the assets of Trust C are interests
in properties the parties refer to as Taylor, Paularino, Domingo,
Derek (or Pepperwood), and Calle Cristina. 5 According to the Trust
document, these properties are to be distributed upon King’s death
4 We will refer to the Trust and the subtrusts collectively
as the Trust unless a more specific reference to a subtrust is
appropriate.
5 Consistent with the terms of the Trust and the parties’
understandings, our references to properties includes the Trust’s
interests in partnerships and limited liability companies that hold
real property.
4
to Robert or, if Robert is not then living, to Robert’s children—
Benjamin, Jacqueline, and Michael—equally.
After May’s death, King amended Trust A several times. 6
Under an amendment made in June 2004, interests in properties
the parties refer to as Three Lanterns and Sycamore are to be
distributed upon King’s death to Robert or, if Robert is not then
living, to Christine; but if Christine is not then living, these
properties are distributed to Michael.
Under an amendment made in January 2005, a certain
residence in Monterey Park is to be given to Jacqueline. 7
Under an amendment made in November 2005, property the
parties refer to as Atlantic Towers is to be distributed upon King’s
death to Robert or, if Robert is not then living, to Christine. 8
In addition to the distributions described above, the Trust
document provides for distributions of real properties, business
interests, and money to Robert, Margaret, Esther, Benjamin,
6 As a result of the amendments to Trust A, Robert’s
share of the Trust assets allegedly increased from 36.6 percent
to 69.7 percent. Benjamin alleged that King made these
amendments as a result of Christine’s and Robert’s “psychological,
emotional, and financial elder abuse on an increasingly demented
and incapacitated King.”
7 Certain bequests are made to the trustees of trusts
established for the benefit of Esther, Benjamin, or Jacqueline.
Our references to bequests to such individuals includes bequests
to the trustee of such trusts unless the more specific reference is
appropriate.
8 The Atlantic Towers property was sold in 2013. It appears
from our record that proceeds of the sale have been held in a
separate account of a limited partnership that remains a Trust
asset. The parties’ references to Atlantic Towers appears to refer
to the Trust’s interests in that limited partnership.
5
Jacqueline, and Michael, among others. The Trust document
includes other bequests that are not relevant for our purposes.
The Trust document further provides for the distribution
of the Trust residue; that is, trust property for which there is
no specific bequest. Under the residuary provisions, 30 percent
of the residue goes to each of Robert, Margaret, and Esther, and
10 percent goes to Benjamin; if, however, Robert predeceases King,
Robert’s 30 percent share of the residue is distributed in equal parts
to each of Robert’s children—Benjamin, Jacqueline, and Michael.
In February 2011, King, whose cognitive abilities had
allegedly been in decline for some time, resigned as trustee of the
Trust and, pursuant to the Trust document, Robert and Margaret
became co-trustees.
In January 2013, Robert became incapacitated and, in March
2013, the superior court appointed Benjamin (Robert’s son by his
first wife, Helena) to act as co-trustee of the Trust together with
Margaret. (We will sometimes refer to Benjamin and Margaret
collectively as the co-trustees.)
Robert died in June 2013.
King died in June 2014.
B. Trust Litigation
In October 2012 (prior to Robert’s and King’s deaths),
Esther filed a petition in the Los Angeles Superior Court alleging
that Robert and Margaret improperly delegated to Christine
their fiduciary duties as trustees of the Trust. The petition was
assigned case No. BP137413. Esther sought an accounting and an
order removing Robert and Margaret as trustees.
In March 2013, Esther requested the appointment of a
guardian ad litem for the Minors in Los Angeles Superior Court
case No. BP137413. The court, over Christine’s objection, granted
6
the request and appointed Chen as the Minors’ guardian ad litem.
At that time, Jacqueline and Michael were ages 10 and 8,
respectively.
In February 2014 (after Robert’s death and the appointment
of Benjamin as co-trustee of the Trust), Esther filed an amended
petition in case No. BP137413, alleging that Christine converted
trust assets for her benefit. On the same day, Esther filed another
amended petition under section 850 in the same case alleging
that Benjamin and Margaret breached their fiduciary duties as
co-trustees of the Trust.
In August 2015, Benjamin and Margaret filed a petition
in case No. BP137413 for an order surcharging Robert’s estate
based on allegations that Robert breached his fiduciary duties
as trustee “by making improper and unauthorized payments and
disbursements of [t]rust assets.”
In July 2016, Benjamin filed a petition under section 850 in
Los Angeles Superior Court case No. BP154245. Benjamin alleged,
among other claims, that Robert and Christine committed elder
financial abuse against King and, acting as trustee and/or trustee
de son tort, breached their fiduciary duties and misappropriated
trust assets—including money, jewelry, and antiques—for their own
benefit. Benjamin sought compensatory, statutory, and punitive
damages, an order requiring Christine to disgorge assets wrongfully
taken from the Trust, and a determination that Christine be
deemed to have predeceased King for purposes of section 259.
In October 2016, Christine filed petitions in Los Angeles
Superior Court case No. BP155345 to remove Benjamin and
Margaret as trustees of the Trust based on alleged breaches of
trust. Christine sought, among other relief, an order suspending
and removing Benjamin and Margaret as trustees and surcharging
them for losses to Trust A incurred as a result of their
7
mismanagement. Benjamin moved to dismiss the petition under
the anti-SLAPP statute (Code Civ. Proc., § 425.16). The court
denied the motion on February 20, 2018. 9
In August 2017, Margaret filed a “joinder” to Benjamin’s
petition in case No. BP154245. In March 2018, Benjamin and
Margaret filed a first amended petition that alleged claims similar
to those Benjamin alleged in the original petition and sought
similar relief.
Esther filed another amended petition in January 2017
under case No. BP155345. She alleged that King suffered
from dementia since 2004 and was susceptible to undue influence
since that time. Christine and Robert allegedly took advantage
of King’s vulnerability to wrongfully transfer to themselves
approximately $10 million of trust assets. Esther sought, among
other relief, an order that Christine return the property taken from
the Trust and pay double damages pursuant to section 859. She
also sought an order determining that Christine predeceased King
for purposes of section 259.
In addition to the Trust litigation in case Nos. BP137413,
BP154245, and BP155345 described above, at least five other
probate court proceedings have been deemed related to these
cases. Although the substance and status of these related cases
are not entirely apparent from our record, they have been identified
(and summarily described) as Los Angeles Superior Court case
No. BP143884 (concerning Robert’s estate); case No. BP145642
(concerning Robert and Helena’s irrevocable life insurance trust
9Benjamin appealed that order to this court, which we
assigned case No. B288425. On January 29, 2020, we ordered the
appeal stayed “pending determination of the proceedings before the
probate court.”
8
(ILIT)); case No. BP145759 (concerning the guardianship of the
Minors); case No. BC544149 (concerning litigation regarding
Robert’s estate); and case No. BP162717 (concerning the King
Chui and Chi May Chui life insurance trust). 10
In 2014, the court appointed Christine as guardian of the
estates of Jacqueline and Michael in case No. BP145759 and
guardian ad litem for the Minors in case No. BP145642 (concerning
the ILIT litigation).
It does not appear that, prior to March 3, 2020, any guardian
ad litem had been formally appointed for the Minors other than
Chen in case No. BP137413 and Christine in the ILIT litigation,
case No. BP145759. 11
C. The Settlement Agreement
Trial in the Trust litigation was set to begin on May 14,
2018. 12 That day, counsel for Christine, Benjamin, Margaret, and
Esther announced a settlement (the settlement agreement) in court
and orally set forth the terms on the record in accordance with Code
of Civil Procedure section 664.6. Guardian ad litem Chen was not
present and the Minors were not represented in the proceeding.
10The parties also refer to Los Angeles Superior Court case
No. BP16STP04524, which is apparently concerned with Robert’s
separate property trust, although it does not appear that a court
has deemed that case related to the others.
11 In March 2020, the court expressed its view that the
failure to appoint Chen in “several other cases” that had been
deemed related was the result of the court’s “oversight” and an
“administrative defect,” which it then “cur[ed]” by appointing
Chen as guardian ad litem in several of the related cases.
12 It is not clear from our record which cases were the subject
of the trial that was scheduled to begin on May 14, 2018.
9
Christine’s counsel recited the following settlement terms on
the record:
(1) Christine “waives all rights to Trust A, including but not
limited to claims regarding Three Lanterns, Sycamore, and Atlantic
Towers. Such interest goes to the residue.”
(2) Benjamin’s interest in “Taylor, Derek, and Paularino are
disclaimed to the Minor[s],” and the Minors and Christine “disclaim
their beneficial interest in Domingo” to Benjamin.
The property known as “Calle Cristina will be sold, and
two-thirds of the net proceeds will go to Ben[jamin], and the
remaining one-third will go to the minor children’s trusts.”
“The parties consent to the sale of [property known as]
Hellman for fair market value, and shall cooperate as needed.” 13
(3) Christine will deliver to Benjamin’s lawyers certain
jewelry and other items of personalty within one week.
(4) Christine will pay $3 million to Benjamin’s counsel’s trust
account within one week.
(5) The property to be distributed to Jacqueline and Michael
under the Trust “will be distributed to their respective irrevocable
trusts that were established by King, Robert[,] and Christine.”
(6) “Christine disclaims any rights as a beneficiary of King’s
trusts. The minor children’s claims, if any, can only be brought
by their guardian ad litem Jackson Chen, his designee, or his
court-appointed successor, until such time as they reach the age
of majority.”
(7) Christine’s appeal in the ILIT case and Benjamin’s appeal
from the order denying his anti-SLAPP motion will be dismissed
with prejudice, each side bearing their own costs and attorney fees.
13The Hellman property was not the subject of a specific
bequest in the Trust and was considered part of the Trust residue.
10
(8) Benjamin “disclaims any further interest or rights or
standing in Robert’s trust, with the exception of the Domingo
property.” “All litigation between the parties . . . will be dismissed,
with each side to bear their own costs and attorney fees.” No one
admits liability and all parties “agree to a waiver of Civil Code
section 1542.”
(9) “[A]ll provisions of this agreement affecting the Minors’
interests and rights are subject to approval by the guardian
ad litem.”
(10) “[T]he parties shall work together to cause the Trust
to be amended to effectuate the settlement with the resulting tax
treatment that is fair and equitable to all parties.”
(11) “[A]ll objections to any accountings are dismissed with
prejudice, and all parties waive rights to future accountings.”
(12) The parties shall “prepare a long form agreement, with
all disputes regarding the long form agreement to be resolved by”
a specified judge “via a binding arbitration.”
The court confirmed with counsel that the agreement would
be enforceable under Code of Civil Procedure section 664.6.
After Christine’s counsel recited the foregoing terms, counsel
for Benjamin announced that “there are other terms that are not
material to the agreement with Christine that have been reached
as and among all the other parties.” He proposed to read these
additional terms into the record after the court has questioned
the parties about the agreement. The court then asked Christine,
Benjamin, Margaret, and Esther if they heard and understood
the terms of the agreement, if they had had enough time to speak
to their lawyers about the terms, and if they agreed to the terms.
Each answered the questions affirmatively.
The court concluded that, “subject to, with the exception of
Mr. Chen on behalf of the two minor children, everybody appears
11
to have agreed to these terms, and the court can, with that
one exception, assuming they agree, find that there’s a binding
settlement of all issues, and all petitions will be disposed of per
the agreement.”
Benjamin’s counsel then indicated he wanted to place the
additional terms on the record. Christine’s counsel asked if they
“need[ed] to stay.” The court suggested that they “stay, just in
case,” but told counsel, “[Y]ou can leave if you want.” Christine’s
counsel responded, “Let’s leave.” Christine and her counsel then
left the courtroom.
Benjamin’s counsel then recited the following additional
terms: Esther will receive the $3 million that Christine agreed
to deliver to Benjamin’s lawyers; Helena Chui (Robert’s first
wife and Benjamin’s mother) and Ruth Chang (Helena’s mother)
will exercise a right to purchase the Sycamore property “at book
value”; Esther has a right of first refusal on any offer for the
Three Lanterns property without commission; and Margaret will
have the authority to assign family burial plots. Lastly, a time
limit established in the Trust that bars Esther from full access to
her trust property shall be waived.
The court inquired of Esther, Margaret, Helena, and Ruth
as to their understanding and acceptance of the terms and their
opportunity to speak with counsel, and received affirmative
responses from each. The court then found that “there’s another
binding agreement between the parties enforceable under [Code of
Civil Procedure section] 664.6.”
Within one week after the settlement agreement was placed
on the record, Christine delivered to Benjamin’s counsel $3 million
and certain jewelry, in accordance with the agreement.
12
D. The First GAL Agreement
On July 5, 2018, Christine filed a motion to set aside the
settlement agreement, asserting that her consent to the settlement
“was legally invalid because she was under the influence of codeine,
as well as ill and sleep-deprived.” She further asserted that the
settlement agreement is “unconscionable.” The court denied
Christine’s motion without prejudice as procedurally improper. 14
On July 23, 2018, Chen, pursuant to a request from the court,
provided a report to the court in which he referred to a “long-form”
“draft ‘Settlement Agreement and Mutual Release,’ ” which
Benjamin’s counsel had circulated. Chen informed the court:
“At the present time, with the long-form agreement as drafted, I
do not believe that the proposed settlement is in the best interests
of the Minors and I am unable to sign the agreement.” He made
the following comments: (1) The $3 million Christine paid to
Benjamin’s counsel’s trust account should be deposited in the
Trust to be applied to estate taxes and administration expenses;
(2) He could not agree to “broad releases, including a waiver
of Civil Code [s]ection 1542”; (3) He has “substantial concerns”
regarding the distribution of property into the Minors’ trusts,
which “are not supervised by the [c]ourt” and would extend the
time the distributions are held in trust “to the detriment of the
Minors”; (4) He would not agree to the approval of trust accountings
or to waive the Minors’ rights to future accountings; and (5) The
provision giving the guardian ad litem the power to bring claims
14The court denied the motion to vacate the settlement
because “there was no such thing as a motion to vacate an
agreement. You either file a complaint to vacate an agreement . . .
or perhaps you bring a petition in probate court parallel to a
complaint to vacate an agreement.”
13
on behalf of the Minors should be limited to matters connected
to proceedings in which a guardian ad litem is appointed. Chen
concluded that he “will insist on certain changes to the long-form
agreement before” he agrees to sign it.
On August 10, 2018, Benjamin, Margaret, Esther, and
Chen entered into the first GAL agreement, which recites
that Chen “agrees to the terms of the Settlement Agreement
subject to this Agreement.” The first GAL agreement included,
among other provisions, an agreement that the Minors will each
receive $500,000 out of the $3 million Christine had delivered
to Benjamin’s counsel. The agreement further provides that the
guardian ad litem’s waiver of rights under Civil Code section 1542
is limited to matters pertaining to the Trust and that, although
Chen agrees to withdraw any objection to previously filed petitions
for accountings, he “retains the right to request future accountings.”
Christine is not named as a party to the first GAL agreement,
and she did not sign it.
E. Motion to Enforce the Settlement Agreement
On August 15, 2018, Benjamin and Margaret filed a motion
to enforce the settlement agreement under Code of Civil Procedure
section 664.6. The motion was supported in part by Chen’s
declaration in which he states that he believes the first GAL
agreement “did not change the material terms of the settlement
agreed to by the other parties.” The settlement agreement,
he stated, “is in the best interest of the [M]inors and the other
beneficiaries of the . . . Trust.” In a supplemental declaration,
he stated that he “never rejected the May 14, 2018 [s]ettlement,”
and he had “agreed to the settlement on behalf of the [M]inors on
August 10, 2018.”
14
Christine filed an opposition to the motion and argued,
among other arguments, that Chen’s July 23, 2018 report
“amounted to a rejection of the offer set forth in the [settlement]
[a]greement,” and the first GAL agreement includes terms that
differ from the settlement terms.
On September 12, 2018, the court held a hearing on the
motion and took the matter under submission. On September 17,
the court issued a written ruling granting the motion. The court
rejected Christine’s argument that the terms of the oral settlement
agreement were changed by the first GAL agreement. The first
GAL agreement, the court explained, “explicitly states Chen’s
agreement to the terms of the settlement agreed to by the other
parties on the record before the [c]ourt on May 14, 2018.” The
court also rejected the argument that Chen’s July 23, 2018 report
to the court constituted a rejection of the settlement agreement:
“Chen never stated that he rejected the terms of the settlement”;
he “stated merely that he would not sign the proposed long form
agreement as drafted.”
The court concluded by stating that “[t]he [settlement]
agreement still remains subject to [c]ourt approval of the [M]inors’
compromise.”
In its order, the court noted that although “Chen was
appointed initially as [guardian ad litem] in just one case,
thereafter the parties stipulated that the pending petitions in
all these related cases were to be tried together. The [c]ourt
understood that [Chen] was [guardian ad litem] for all of these
cases—as did Chen.” In that order, the court refers to the following
cases as “related”: BP137413, BP143884, BP145642, BP145759,
BP154245, BP155345, BP162717, and BC544149.
On September 27, 2018, Christine filed a motion for
reconsideration of the order enforcing the settlement agreement.
15
She argued that she had been denied an evidentiary hearing and
that the court erred in concluding that the agreement among other
parties that the $3 million she had paid would be given to Esther
was immaterial. She further argued that Chen’s July 23, 2018
report constituted a rejection of the settlement “offer.”
Before that motion was heard, Christine filed a motion
to vacate the order enforcing the agreement on the grounds:
(1) Two pending appeals in related cases deprived the court of
jurisdiction to make the order enforcing the settlement agreement;
(2) Christine, in her capacity as guardian ad litem for the Minors
in the ILIT case and as guardian of the Minors’ estates, did not
consent to the settlement agreement; (3) There was no meeting of
the minds because Christine was mistaken as to material terms of
the settlement agreement; (4) The settlement agreement was the
result of extrinsic fraud or mistake; (5) The settlement agreement
is unconscionable and contrary to public policy; and (6) Christine’s
mental condition at the time of the agreement was “impaired.”
On December 14, 2018, the court denied the motion for
reconsideration and the motion to vacate the order enforcing the
settlement agreement.
On December 17, 2018, Christine filed a petition in case
No. BP154245 to set aside the settlement agreement, appoint
an interim trustee to manage the Trust, and appoint herself as
guardian ad litem for the Minors in place of Chen, among other
relief. The court subsequently granted Benjamin’s anti-SLAPP
motion and dismissed the petition. 15
15Christine has appealed the order granting Benjamin’s
anti-SLAPP motion to this court (case No. B301214). We stayed
proceedings on appeal pending the outcome of the litigation
regarding the settlement agreement.
16
In January 2019, the court entered its order enforcing the
settlement agreement. 16
F. Chen’s Petition for Approval of the First GAL
Agreement
On November 12, 2018, Chen filed a petition for an order
approving the first GAL agreement. A trial on Chen’s petition took
place in April and May 2019. After Chen rested his case, Christine
made a motion for nonsuit, which the court treated as a motion for
judgment under Code of Civil Procedure section 631.8.
On July 18, 2019, the court granted Christine’s motion and
denied Chen’s petition for approval of the first GAL agreement.
Chen, the court stated, had not proven “that the agreement is in
both or either of the [Minors’] best interests.” The court also issued
an order to show cause (OSC) re removal of Benjamin and Margaret
as co-trustees.
G. The Second GAL Agreement
On July 29, 2019, Benjamin and Margaret moved for
reconsideration of the court’s order granting Christine’s motion
for judgment. On August 22, Chen, Benjamin, and Margaret filed
motions to reopen the trial. During the hearing on these motions
in October 2019, the parties agreed to participate in a mediation.
16 Christine filed a notice of appeal from this order on
March 5, 2019, which we assigned case No. B296150. In June
2019, Benjamin filed a motion in this court to dismiss the appeal
on the ground that the order was not an appealable order because
the settlement agreement was subject to approval of the Minors’
compromise. On July 3, 2019, we granted Benjamin’s motion and
dismissed the appeal “as premature.”
17
On December 5, 2019, Benjamin, Margaret, Chen, and
Christine participated in a mediation. All participants other than
Christine reached an agreement (the second GAL agreement).
At a status conference held on December 16, 2019, the court
was informed of the second GAL agreement and ordered that the
motions to reopen the trial and the motion for reconsideration of
the order granting Christine’s motion for judgment were withdrawn
as moot. The court explained that Chen’s petition for approval
of the first GAL agreement was “denied with prejudice as to that
agreement” and without prejudice to a motion for approval of “some
revised [GAL] agreement.”
The second GAL agreement was memorialized in a writing
dated January 16, 2020, and signed by, among others, Benjamin
and Margaret (in their individual capacities and as trustees of the
Trust), Esther, Helena (Robert’s first wife), and Chen as the Minors’
guardian ad litem. Christine did not sign the document.
The second GAL agreement incorporates the terms of
the settlement agreement and states that the parties “agree to
and approve the terms of the Settlement Agreement that affect
Jacqueline and Michael, and except as expressly provided herein,
nothing in [the second GAL agreement] modifies or eliminates any
term of the [settlement].”
According to the second GAL agreement: Benjamin shall
give to the Minors his interests in the Taylor, Derek, and Paularino
properties and the Minors shall give to Benjamin their interests in
the Domingo property; the Minors shall each receive $500,000 out
of the $3 million Christine paid to Benjamin’s counsel under the
settlement agreement and approximately $190,000 “from Insurance
18
Trust #1”; 17 Helena and Ruth shall pay $740,000 to each of the
Minors for the Minors’ interests in Sycamore; the Calle Cristina
property will be sold and one-third of the net proceeds “shall
collectively be distributed” to the Minors “equally”; the Hellman
property shall be sold and 10 percent of the net proceeds “shall
collectively be distributed” to the Minors “equally”; Benjamin,
Margaret, and Esther shall pay any estate tax liability attributable
to the interests the Minors receive from the Trust; the Minors shall
receive “a credit for their share of the [e]xpenses of [a]dministration
[as defined] coupled with a complete and full distribution of their
share of the Trust” and, as a result, they shall “have no further
interest in the Trust and/or in the future accountings of the Trust”;
the trustees shall pay any property taxes attributable to the Minors’
property interests in the Trust until the properties are distributed
to them; “ ‘all objections to any accountings are dismissed with
prejudice, and all parties waive rights to future accountings’ ”;
the parties release the Minors from any liability for legal and
administrative expenses attributable to the interests distributed
under the second GAL agreement; and the parties waive their
rights under Civil Code section 1542, provided that Chen’s waiver is
limited to matters pertaining to the administration of and litigation
relating to the Trust; the parties waive their right to object to
approval of the second GAL agreement and to appeal from an order
approving the agreement.
17 The Trust document does not refer to an “Insurance Trust,”
and it is not clear from our record to what the phrase “Insurance
Trust #1” refers. Its nature and the amount due the Minors under
this trust, however, does not appear to be in dispute.
19
H. The Repudiations
On December 3, 2018, Christine filed a notice of repudiation
of the settlement agreement and the first GAL agreement.
Three days later, she filed an amended and supplemental notice
of repudiation of the settlement agreement and the first GAL
agreement. Christine purported to repudiate these agreements
in her capacity as parent and guardian of the Minors, guardian
ad litem of the Minors with respect to the ILIT case, “and as a
petitioner, respondent, and beneficiary of the . . . Trust.” According
to Christine, the terms other parties agreed to after she left the
courtroom on May 14, 2018 “resulted in material prejudice to
the Minors.” She also relied on a declaration by an accountant
who opined that the settlement agreement resulted in a net loss
to the Minors of $25,251,430. In addition, “she has reason to
believe” the settlement agreement may have caused “as much as
$100,000,000.00” in economic harm to the Minors.
In February 2019, Jacqueline (then 15 years old) filed an
unverified notice of her repudiation of the settlement agreement
and the first GAL agreement. She states that she is repudiating
the settlement agreement “on her own” “because it is not in her best
interests,” it waives various rights and claims she holds, disclaims
her interest in the Domingo property, “and in many ways leav[es]
her in a worse position than if Christine . . . had lost at trial.”
On December 26, 2019—after the parties to the second GAL
agreement participated in the mediation that led to that agreement
and before that agreement was memorialized in writing—Christine
filed a notice of repudiation of the second GAL agreement on the
ground, among others, that the agreement was not in the best
interest of the Minors. After the written second GAL agreement
was executed, Christine filed a supplemental repudiation of the
agreement. In each document, she stated she was acting as the
20
parent and guardian ad litem for the Minors in the ILIT case,
guardian of the Minors’ estates, trustee of Robert’s separate
property trust, and the trustee of the Minors’ irrevocable trusts.
According to Christine, the Minors “are far better off without” the
second GAL agreement “by approximately $50 million” and, if the
agreement is disapproved, the Minors “will reserve their rights and
claims of $100 million against Esther,” Benjamin, and Margaret, as
well as their “rights to accountings, and appeal.”
On January 31, 2020, Jacqueline (then 17 years old)
and Michael (then 15 years old) signed and filed declarations
repudiating the second GAL agreement. The Minors stated that
Chen “has never met or spoken with [them]” during the preceding
eight years and has assisted others in litigating against them
and their interest. According to the Minors, the agreement also:
“waives [their] substantial rights and claims including 8-year
past due and future trust accountings”; “waives [their] substantial
rights, interests, [and] claims of over $100 million against [others]”;
and “waives [their] constitutional rights to appeal.” The Minors
further stated that Chen has a conflict of interest by representing
both of them. 18
On February 27, 2020, the co-trustees filed a response to
Christine’s purported repudiations. Among other points, they
asserted that Christine does not have standing to repudiate the
agreements in any capacity because Chen is the only person who
can act for the Minors with respect to the Trust litigation, Christine
has an irreconcilable conflict of interest with the Minors, and
18The court ultimately struck these declarations because
they were not verified. The declarations were resubmitted in
March 2020 with the Minors’ verifications.
21
Christine waived any rights to represent the Minors when she
agreed to the settlement agreement.
I. The March 3, 2020 Consolidated Rulings
The day after the second GAL agreement was signed, Chen
filed a petition for its approval and a petition to remove Christine
as the Minors’ guardian ad litem in all related cases and to appoint
Chen in her place. In response, Christine filed demurrers to each
petition and a petition to remove Chen as guardian ad litem for the
Minors. 19
On March 3, 2020, the court heard oral argument from
counsel for Christine, Benjamin, Margaret, Esther, and Chen
regarding the pending petitions and demurrers. At the conclusion
of the hearing, the court issued a “consolidated ruling,” in which
the court made the following rulings, among others: (1) The
court overruled Christine’s demurrer to Chen’s petition to remove
Christine as guardian ad litem of the Minors and granted Chen’s
petition, appointing him guardian ad litem of the Minors in
Christine’s place in all related cases except the case concerned with
19 On the same day, Christine, in her individual capacity
and in her capacity as a fiduciary of Jacqueline and Michael,
filed a petition under section 850 alleging, among other claims,
that Benjamin, Margaret, and Esther had misappropriated
trust property and tortiously interfered with Christine’s and
the Minors’ expected inheritance. Among other relief, Christine
sought: the return of property “wrongfully taken”; punitive
damages; an order disinheriting Esther, Margaret, and Benjamin;
and the removal of Benjamin and Margaret as co-trustees of the
Trust.
22
the guardianship of the estate of the Minors (case No. BP145759); 20
(2) The court denied without prejudice Christine’s petition for
removal of Chen as the Minors’ guardian ad litem; and (3) The court
overruled Christine’s demurrer to Chen’s petition for approval of
the second GAL agreement and granted the petition. The court also
discharged its OSC regarding removal of Benjamin and Margaret as
co-trustees.
Initially, the court stated that the co-trustees and Christine
lacked standing to challenge Chen’s petition for approval of the
second GAL agreement. “Proceedings on a [guardian ad litem’s]
[p]etition for [a]pproval,” the court explained, “are fundamentally
between the [M]inors, the [guardian ad litem], and the [c]ourt—and
nobody else.” The court also rejected the need for an evidentiary
hearing because “proceedings on a [p]etition for [a]pproval are
generally non-adversarial in nature, as the proceeding is purely
between the [c]ourt and its officer, the [guardian ad litem], to
determine whether a proposed agreement is a good deal for the
[M]inors.”
In evaluating the second GAL agreement, the court
considered the Trust document and evidence of what the Minors
would receive under the second GAL agreement. The court noted
that the second GAL agreement provided “substantially better
economic terms for the Minors than the [first] GAL agreement,”
which the court had rejected eight months earlier. In addition
to greater economic benefits, the second GAL agreement also
“disentangles the Minors’ assets from Ben[jamin]’s assets,
substantially mitigating the possibility of future disputes.”
20 The court subsequently corrected this order to the extent
it appointed Chen as guardian ad litem in case No. BP145642,
involving the ILIT.
23
Although the Minors were waiving their right to future accountings,
the court determined that this waiver had no “negative effect” on
the Minors because, as a result of the property exchanges between
the Minors and Benjamin, and the co-trustees’ agreement to cover
the Minors’ liabilities for estate taxes and trust expenses, the
co-trustees “will no longer hold any of the Minors’ assets,” and “the
Minors no longer had any financial interest in the Trust.”
The court approved of the second GAL agreement’s handling
of Three Lanterns, Sycamore, and Atlantic Towers. The Minors
would receive a total of $1,480,000 for their share, as residuary
beneficiaries, of the Trust’s interest in the Sycamore property—an
amount “corresponding to the Minors’ 20 [percent] interest in the
[T]rust residue.” Three Lanterns will be sold to pay estate taxes
in accordance with the terms of the Trust document, 21 and the
Minors’ share of that property’s value and the Atlantic Towers
sale proceeds—equal to approximately $1.75 million—will, in effect,
be exchanged for a “waiver” of the Minors’ $3.2 million share of
estate taxes, producing “a net improvement of $1.45 million” for
the Minors. The court expressly declined to consider “hypothetical
trial results—where the evidence is unknown” and rejected
“[u]nnecessary speculation as to the outcome of a highly contested,
lengthy and expensive trial,” which “would not clarify the merits of
the [a]greement.”
In overruling Christine’s demurrer to Chen’s petition to
remove Christine as guardian ad litem and her demurrer to Chen’s
21 Pursuant to the 2008 amendment to the Trust, estate
taxes attributable to the gifts made of Trust A property were to
be paid from the residue of the Trust and from the Three Lanterns
property. According to evidence submitted by the co-trustees, there
were insufficient assets in the residue to pay all the taxes due. The
sale of Three Lanterns was therefore necessary to pay the taxes.
24
petition for approval of the second GAL agreement, the court
rejected Christine’s reliance on her and the Minors’ repudiations of
the second GAL agreement. The repudiations filed by the Minors,
the court explained, “are not legally operative documents, as they
are unverified and not prepared by or with the Minors’ [guardian
ad litem].” Because the Minors “have no legal authority to file
repudiations without the representation of a guardian ad litem,”
the repudiations are “ineffective and improper.”
The court stated that although Christine, as the Minors’
parent, “would generally have a right to object or repudiate, she is
precluded from doing so here because her objection is inconsistent
with the Minors’ interest.” Moreover, “Christine has expressly
waived her right to bring claims on the Minors’ behalf or object to
the terms of the [second] GAL [a]greement” under the settlement
agreement. The court struck Christine’s repudiations “as improper
and irrelevant.”
In granting Chen’s petition to remove Christine as guardian
ad litem and appointing Chen in her place in certain cases, the
court found that Christine “waived her right to represent the
Minors as their guardian for purposes of the settlement agreement”
and that she has a conflict of interest arising “from her persistent
opposition to any possibility of settlement,” which precludes
“her from acting on the Minors’ behalf in this litigation.” The
court further explained that, although the court had previously
deemed the other cases related to the case in which Chen had been
appointed guardian ad litem and had indicated to Chen that he
should seek appointment in the related cases, Chen had not done so
“until now.” By extending his appointment of Chen as guardian
ad litem to the other cases, the court stated that it was “remedying
an administrative defect” and “curing its own oversight.”
25
In denying Christine’s petition to remove Chen as guardian
ad litem, the court noted that Christine waived her right to seek
Chen’s removal when she agreed that the Minors’ claims “ ‘can only
be brought by their guardian ad litem[,] . . . Chen.’ ” Moreover, the
court found that “there is no basis to remove Chen where he has
successfully done his job by negotiating an approvable settlement
for the Minors, leaving them far better off than they were under the
[first] GAL [a]greement.”
On March 23, 2020, the court entered an order incorporating
the March 3 rulings.
Christine filed a motion for reconsideration of the
consolidated rulings on March 13, 2020, and a motion for new
trial on March 27, 2020.
On April 28, 2020, the court denied Christine’s motion for
a new trial. The court rejected Christine’s reliance on the Minors’
repudiations of the second GAL agreement because Christine
lacked the authority to prepare and file the repudiations on the
Minors’ behalf without Chen. Chen, the court explained, “must be
involved in any [r]epudiations by the Minors.”
On June 24, 2020, the court granted Christine’s motion for
reconsideration of the court’s March 3, 3020 rulings with respect
to her removal as guardian ad litem in the ILIT case (case
No. BP145759), and otherwise denied the motion. On the same
date, the court entered an order: approving the second GAL
agreement; appointing Chen guardian ad litem of the Minors
in case Nos. BP145642, BP154245, BP162717, 16STPB04524,
BC544149; denying without prejudice Christine’s petition to
remove Chen as guardian ad litem; and discharging the OSC
regarding removal of the co-trustees.
26
On July 23, 2020, Christine, Jacqueline, and Michael filed
separate notices of appeal from the court’s orders issued on March
3, 2020, April 28, 2020, and June 24, 2020.
Chen filed a motion in this court to dismiss the appeals
filed by Jacqueline and Michael. We summarily denied that
motion on March 22, 2021. Christine, Jacqueline, and Michael—
each represented by separate counsel—thereafter filed separate
appellant’s briefs. The co-trustees, Esther, and Chen filed
respondent’s briefs.
DISCUSSION
A. The Effect of Pending Appeals on the Trial Court
Proceedings
Christine and the Minors argue that the trial court lacked
jurisdiction to make the challenged orders enforcing the settlement
and approving of the second GAL agreement because appeals
on other rulings were pending in this court. 22 We reject this
argument.
1. Background: The Pending Appeals
The pending appeals are case Nos. B286548, B288425, and
B301214. Case No. B286548 is an appeal from a judgment in the
22 Esther contends that we should not consider the appeals
by Jacqueline and Michael because they were represented by
a guardian ad litem, Chen. Esther argues that the Minors can
speak through only “[o]ne [v]oice”—in this case, Chen’s—and there
cannot be a “second voice” speaking for the Minors on appeal,
even their own. As we explain below, even if we assume that the
Minors may appeal, they have failed to establish prejudicial error.
We do not, therefore, need to decide whether Chen’s trial court
appointment as the Minors’ guardian ad litem precludes the Minors
from challenging the court’s orders on appeal.
27
ILIT litigation (L.A. Superior Court case No. BP145642) (the ILIT
appeal). In that case, the trial court determined that Benjamin is
the sole remainder beneficiary under Robert’s life insurance trust
“and is entitled to . . . 100 [percent] distribution of the assets in the
[trust].” The court entered a judgment in favor of Helena (Robert’s
first wife) and Benjamin (Robert and Helena’s child) and against
Christine (Robert’s second wife), in her capacity as guardian of the
estates of Jacqueline and Michael (Robert and Christine’s children).
Christine filed her notice of appeal in November 2017.
Under the settlement agreement reached in May 2018,
Christine agreed to dismiss the ILIT appeal.
On February 21, 2019, we granted Benjamin’s motion to stay
proceedings in the ILIT appeal pending resolution of Christine’s
challenges to the settlement agreement and the second GAL
agreement.
Case no. B288425 is an appeal by Benjamin from an
order issued on February 20, 2018 (L.A. Superior Court case
No. BP155345) denying his anti-SLAPP motion to dismiss
Christine’s petition to remove Benjamin as a trustee of the Trust.
Benjamin filed his notice of appeal on February 23, 2018. Under
the settlement agreement, Benjamin agreed to dismiss the appeal.
On January 29, 2020, we granted Benjamin’s motion to stay
proceedings on appeal in case No. B288425 “pending determination
of the proceedings before the probate court.”
Case No. B301214 is an appeal by Christine of an order
issued on March 29, 2019 (L.A. Superior Court case No. BP154245)
granting Benjamin’s anti-SLAPP motion dismissing Christine’s
petition to set aside the settlement agreement and for other relief.
On January 31, 2020, we granted Benjamin’s motion to stay
28
proceedings on appeal in this case “pending determination of the
proceedings before the probate court.” 23
2. Discussion
Under section 1310, an appeal of a judgment or order in
proceedings governed by the Probate Code generally “stays the
operation and effect of the judgment or order.” (§ 1310, subd. (a).)
The question is thus whether the statutory stay of the “operation
and effect” of the judgment in the ILIT case and the anti-SLAPP
orders precluded the court from ruling on the motion to enforce the
settlement agreement and Chen’s petition to approve the second
GAL agreement.
The purpose of the automatic stay under section 1310, like
the automatic stay imposed in civil actions generally, “ ‘is to protect
the appellate court’s jurisdiction by preserving the status quo
until the appeal is decided. The [automatic stay] prevents the
trial court from rendering an appeal futile by altering the appealed
judgment or order by conducting other proceedings that may affect
it.’ ” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th
180, 189 (Varian) [discussing Code of Civil Procedure section 916,
subdivision (a)].)
In considering the analogous Code of Civil Procedure section
that generally imposes a stay of proceedings “in the trial court upon
the judgment or order appealed from or upon the matters embraced
therein or affected thereby” (Code Civ. Proc., § 916, subd. (a)), our
Supreme Court has explained that the “fact that [a] postjudgment
or postorder proceeding may render the appeal moot is not, by itself,
23 We take judicial notice of the notices of appeal and our
orders staying proceedings on appeal in case Nos. B286548,
B288425, and B301214.
29
enough to establish that the proceeding . . . should be stayed.”
(Varian, supra, 35 Cal.4th at p. 189.) “Rather, something more is
needed. For example, the trial court proceeding must directly or
indirectly seek to ‘enforce, vacate or modify [the] appealed judgment
or order.’ [Citation.] Or the proceeding must substantially
interfere with the appellate court’s ability to conduct the appeal.”
(Id. at pp. 189−190, fn. omitted.) A stay of trial court proceedings
may also be required when “the possible outcomes on appeal and
the actual or possible results of the proceeding are irreconcilable.”
(Id. at p. 190.)
Here, the motion to enforce the settlement agreement and
petition to approve the second GAL agreement had two possible
outcomes with respect to the pending appeals: (1) the motion or
petition (or both) would be denied, in which case the provisions in
the settlement agreement requiring the dismissal of the ILIT and
anti-SLAPP appeals would be ineffective, the ILIT judgment and
anti-SLAPP orders would be unaffected, and the appeals would
proceed as if there had been no settlement agreement; or (2) if the
motion and petition were granted, the appeals would be dismissed
pursuant to the settlement agreement. Under the first possible
outcome, there would be no impact on the effect or operation of the
ILIT judgment and the anti-SLAPP orders and no interference with
our ability to conduct the appeals from such judgment and orders.
Under the second possible outcome, although the dismissal of the
appeals necessarily interferes with our ability to conduct those
appeals, it is an interference that the law encourages. As our
Supreme Court has explained, settlement and dismissal of cases
on appeal are favored “because it will preclude the need for future
expenditures of time and money by the parties and the judiciary.
Requiring parties to continue to litigate a matter over which there
is no longer a real dispute ‘is wasteful of the resources of the
30
judiciary.’ ” (Neary v. Regents of University of California (1992)
3 Cal.4th 273, 277.) We therefore reject the argument that the
pending ILIT and anti-SLAPP appeals had the effect of staying
the proceedings that are the subject of this appeal.
Christine further argues that Chen was required to bring
his petition for approval of the second GAL agreement in this
court. She relies on Anderson v. Latimer (1985) 166 Cal.App.3d 667(Anderson). In that case, a minor was injured in an auto accident
and sued the drivers of the two cars involved. (Id. at p. 670.) A jury
found in his favor and against each defendant, and judgment was
entered thereon. The defendants appealed. While the appeal was
pending, one of the defendants settled with the minor’s guardian
ad litem. (Id. at p. 676.) The guardian ad litem filed a petition
in the superior court for approval of the settlement. Based on the
statutory requirement that a minors’ compromise be approved by
“the court in which the action or proceeding is pending” (Code Civ.
Proc., § 372, subd. (a)(1)), the Court of Appeal held that the superior
court “lacked jurisdiction to address the petition”; the Court of
Appeal “was the only court possessing jurisdiction to hear and
determine whether to approve or disapprove the compromise.”
(Anderson, supra, 166 Cal.App.3d at p. 676.)
The Anderson court’s analysis implies that the action or
proceeding in that case was “pending” only in the Court of Appeal.
A motion in a case in which an appeal is pending may go forward
in the trial court, however, so long as the motion is not precluded
by a stay put in place by statute or a court order. (See, e.g., Henry
M. Lee Law Corp. v. Superior Court (2012) 204 Cal.App.4th 1375,
1383 [trial court can proceed on matters not stayed by appeal].) As
to such postappeal motions, the action or proceeding continues to be
“pending” in the trial court even while the appeal is pending in the
Court of Appeal. As set forth above, the related appeals did not
31
stay Chen’s petition for approval of the second GAL agreement in
the trial court. Chen was not required, therefore, to file his petition
in this court.
B. The Order Granting Motion to Enforce the
Settlement Agreement
Christine and the Minors contend that the court erred
in granting the co-trustees’ motion to enforce the settlement
agreement because: (1) The court failed to hold an evidentiary
hearing on the motion; (2) The agreement the court enforced
contains terms to which Christine did not agree; (3) Christine did
not agree that the money she paid to Benjamin’s counsel would be
delivered to Esther; (4) The court failed to make a finding as to the
meaning of “residue”; (5) Chen rejected the settlement agreement;
(6) The agreement is unconscionable; (7) The court failed to consider
“inseverability”; and (8) The agreement was the result of extrinsic
fraud. We reject these arguments.
1. Failure to Hold an Evidentiary Hearing
In connection with the motion to enforce the settlement, the
co-trustees (in support of the motion) and Christine (in opposition
to the motion) submitted declarations and documentary evidence
in support of their positions. The court held a hearing at which
counsel for Christine and the co-trustees appeared and argued.
Chen also appeared as guardian ad litem for the Minors.
Christine contends that she was denied due process because
the court failed to hold a “full evidentiary hearing,” where she could
present witness testimony. We agree with the trial court that, even
if Christine had a right to present testimony at the hearing, she
waived that right by failing to request an evidentiary hearing or to
seek to introduce evidence at the hearing on the motion.
32
Although Christine’s counsel indicated at the hearing that he
had sought to present testimony and other evidence in connection
with Christine’s earlier motion to set aside the settlement, that
motion was not before the court when the motion to enforce the
settlement was heard. The court had previously denied Christine’s
motion to set aside the settlement without prejudice on the ground
that it was procedurally improper, and Christine did not challenge
that ruling. Christine does not refer us to any point in the record
where she requested an evidentiary hearing or the right to present
testimony during the motion to enforce the settlement. Therefore,
even if she had a due process right to present evidence at that
hearing, she waived that right.
Christine also relies on section 1022, which provides that
“[a]n affidavit or verified petition shall be received as evidence
when offered in an uncontested proceeding under this code.” Under
this rule, “ ‘affidavits and verified petitions may not be considered
as evidence at a contested probate hearing’ ” “ ‘when challenged
in a lower court.’ ” (Estate of Bennett (2008) 163 Cal.App.4th 1303,
1309.) When, however, “the parties did not object to the use of
affidavits in evidence, and both parties adopted that means of
supporting their positions” and “participated in such presentation of
the evidence as a matter of convenience . . . , they cannot question
the propriety of the procedure on appeal.” (Estate of Fraysher
(1956) 47 Cal.2d 131, 135; accord, Estate of Nicholas (1986) 177
Cal.App.3d 1071, 1088; see McMillian v. Stroud (2008) 166
Cal.App.4th 692, 704 [trial court did not err in failing to hold
evidentiary hearing where appellants “neither expressly requested
an evidentiary hearing . . . nor made an offer of proof establishing
the necessity for a hearing”].)
Here, both sides submitted and relied on declarations and
documentary evidence to support their views and, although
33
Christine filed objections to the moving parties’ evidence, she
did not object to the use of declarations generally or rely on
section 1022. She has therefore forfeited the argument on appeal.
2. Alleged Changes to the Settlement Agreement
Code of Civil Procedure section 664.6 permits a court to
“ ‘enter judgment pursuant to the terms of a settlement if the
parties stipulate orally before the court or in writing to settle
all or part of a case. [Citation.]’ ” (Leeman v. Adams Extract &
Spice, LLC (2015) 236 Cal.App.4th 1367, 1373–1374 (Leeman).)
A settlement is enforceable under Code of Civil Procedure
section 664.6 if some parties stipulate orally in court while
others agree in writing. (See Elyaoudayan v. Hoffman (2003)
104 Cal.App.4th 1421, 1432 [Code of Civil Procedure section 664.6
allows “a ‘mix and match’ approach to the manner of agreement
as long as all parties agree to the same material terms”]; accord,
Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1259.)
In ruling on a motion to enforce a settlement under Code of
Civil Procedure section 664.6, “the court may interpret the terms
of the parties’ settlement agreement” and decide “ ‘what terms the
parties themselves have previously agreed upon,’ ” but may not
“ ‘create the material terms of a settlement.’ ” (Leeman, supra,
236 Cal.App.4th at p. 1374, quoting Weddington Productions, Inc. v.
Flick (1998) 60 Cal.App.4th 793, 810 (Weddington Productions).)
A new or altered term is material if “it changes the rights or duties
of the parties, or [any] of them.” (Consolidated Loan Co. v. Harman
(1957) 150 Cal.App.2d 488, 491; see Humphreys v. Crane (1855)
5 Cal. 173, 175 [a change that “does not vary the meaning, the
nature, or subject matter, of the contract is immaterial”].)
We review the court’s factual findings to determine if they
are supported by substantial evidence and review legal conclusions
34
de novo. (Weddington Productions, supra, 60 Cal.App.4th at p. 815;
Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.)
Christine contends that the “purported settlement” the court
enforced “ ‘was different from the terms of the parties’ stipulated
settlement agreement.’ ” She discusses 10 terms of the settlement
agreement, which she argues were changed, and describes 15 terms
that appear only in the second GAL agreement. Michael makes a
similar argument, asserting that the agreement the court enforced
included “30 modified and new terms.” More specifically, Michael
lists 10 terms of the settlement agreement that were allegedly
changed and 20 “new terms” that were added in the second GAL
agreement.
Christine’s and Michael’s arguments improperly conflate the
settlement agreement and the second GAL agreement. Although
the second GAL agreement relates to the settlement agreement
and Chen’s approval of the settlement agreement is a condition to
the effectiveness of the agreement, Christine is not a party to the
second GAL agreement and that agreement does not impose any
obligation on her or deprive her of any right or interest she acquired
in the settlement agreement. Although the terms of the second
GAL agreement are relevant to challenges to the court’s approval
of the second GAL agreement (see Discussion part C, post), the
purported 15 terms that Christine identifies and the 20 terms
Michael identifies that were purportedly added in the second GAL
agreement in January 2020 are irrelevant to the issue whether
the court erred in granting the motion to enforce the settlement
agreement in September 2018.
As for the 10 terms that Christine and Michael contend the
court had changed when it granted the motion to enforce the
settlement agreement, a close examination reveals that the
contentions are without merit.
35
The first term of the settlement agreement is that Christine
“waives all rights to Trust A, including but not limited to claims
regarding Three Lanterns, Sycamore, and Atlantic Towers. Such
interest goes to the residue.” According to Christine, under the
agreement the court enforced, “Michael gets only $740,000 of the
‘net fair market’ value of Sycamore” and “Atlantic Tower and
Three Lanterns will be sold to pay for estate tax, and neither
Minor receives anything from these properties.” The reference
to Michael’s receipt of $740,000 is to language in the second GAL
agreement and does not appear in the court’s order enforcing the
settlement agreement. Nor does that payment change or affect any
of Christine’s rights or obligations under the settlement agreement.
Michael contends that under the first term he “should receive
Sycamore and Three Lanterns outright.” The first term, as recited
by Christine’s counsel before the court, however, does not provide
for Michael to receive any interest in Sycamore or Three Lanterns.
Instead, Christine—the devisee of Sycamore and Three Lanterns
under the Trust document—expressly waived her interest in these
properties and agreed that they would go “to the residue.”
Under the second term of the settlement agreement, the
“parties consent to the sale of Hellman for fair market value, and
shall cooperate as needed.” According to Christine and Michael,
these terms were changed because Hellman is part of the Trust
residue and the Minors are 10 percent residual beneficiaries, yet
the Minors “would each receive only [five percent] of the proceeds”
from the sale of Hellman. Christine and Michael again refer to
the second GAL agreement for the allegedly changed term, not
the order enforcing the agreement, which did not specify what, if
anything, the Minors would receive from the sale of the Hellman
property. Moreover, Christine does not explain how the Minors’
36
receipt of five percent of the sale of Hellman affects any of her
rights or obligations under the settlement agreement.
Under the third term, certain jewelry and other items
specified in discovery responses shall be provided to counsel for
Benjamin within one week. According to Christine and Michael,
the enforced agreement differed because the Minors will not receive
the specified items. The agreement as recited by Christine’s
counsel in court, however, did not specify who would ultimately
receive the items. There is thus no difference.
The fourth term of the settlement agreement required
Christine to pay $3 million to Benjamin’s lawyers’ “trust account.”
Contrary to Michael’s assertion, the parties did not agree that the
“Minors will receive $3 million”; in fact, the parties did not specify
the ultimate recipients of the money.
According to Christine, this provision was changed in the
second GAL agreement by requiring that Jacqueline and Michael
each receive $500,000 of the $3 million. Even if the provision for
such payments in the second GAL agreement is deemed a change to
the settlement agreement, it does not change any right or obligation
of Christine’s; it merely provides Michael with $500,000 he did not
have a right to receive under the settlement agreement.
Under the fifth term, the Minors’ interests in the Trust will
be distributed to their respective irrevocable trusts established
by King, Robert, and Christine. Christine asserts that this was
changed to provide for distribution “to those trusts that are under
[c]ourt supervision.” She cites only to the second GAL agreement,
and the citation does not support the assertion.
Under the sixth term, Christine disclaims any rights as a
beneficiary under the Trust and the Minors’ “claims, if any, can only
be brought by” Chen, his designee, or his court-appointed successor
until they reach the age of majority. According to Christine and
37
Michael, this term was changed because Chen waived the Minors’
“claims of $100 million” and the Minors do not “want to waive
[their] claims.” Again, Christine cites only to the second GAL
agreement, and the citation does not support the alleged change.
Michael refers also to his and Jacqueline’s repudiations of the
agreements. The repudiations (which are discussed below), were
not asserted until after the court ruled on the enforcement of the
settlement agreement. Therefore, although they may bear upon
the effectiveness of the second GAL agreement, they cannot be
relied on to challenge the court’s September 2018 ruling enforcing
the settlement agreement. (See Sacramento Area Flood Control
Agency v. Dhaliwal (2015) 236 Cal.App.4th 1315, 1328 [we review
a court’s ruling based on the record as it existed at the time of the
ruling].)
Under the ninth term, the provisions of the agreement
affecting the Minors’ interests and rights are subject to approval
by the guardian ad litem. Christine notes that Chen was appointed
“in only one case of nine cases and had no power to bind the Minors
for the remaining cases.” Michael adds that he “did not want to
dismiss his ILIT appeal.” These points, however, do not indicate
any change in the term in the settlement agreement. Indeed, in
ruling on the motion to enforce the settlement, the court explained
that the settlement agreement was “subject to the condition
precedent of Chen’s agreement.”
The 10th term provides that “the parties shall work together
to cause the Trust to be amended to effectuate the settlement with
the resulting tax treatment that is fair and equitable to all parties.”
Christine argues that this “[n]ever occurred and is not part of the
final judgment,” and that “the tax treatment achieved by the final
judgment is unfair and inequitable.” Michael makes a similar
argument. The references to “final judgment” appear to be to the
38
second GAL agreement or the court’s order approving the
second GAL agreement, not to the order enforcing the settlement
agreement, which made no change to this provision. Moreover,
Christine’s and Michael’s comments indicate an alleged breach of
the agreement, which is irrelevant to the determination of whether
the agreement was enforceable under Code of Civil Procedure
section 664.6.
Under the 11th term, the parties dismissed with prejudice all
objections to accountings and waived rights to future accountings.
Christine and Michael assert that this was changed in the second
GAL agreement where the minors “waived all rights to full and
independent past due, current, and future trust accountings.” They
do not refer to any change in the agreement as enforced by the court
and, in any case, they do not explain how any change in the second
GAL agreement has any effect on their rights or obligations.
Lastly, under the 12th term, “the parties are to prepare a
long form agreement, with all disputes regarding the long form
agreement to be resolved . . . via binding arbitration.” Christine
and Michael argue that this provision was changed because they
were excluded from any long form negotiations, and refer to
the second GAL agreement as a “long form” to which they never
consented. As with the arguments regarding the 10th term, the
alleged exclusion from negotiations suggests a possible breach of
the settlement agreement, not a changed term.
Christine makes a cursory assertion that the court “had
no power to enforce a settlement that, as the [t]rial [c]ourt found
here, had been procured by fraud.” The undeveloped assertion
is made without citation to the record. We therefore decline to
consider it. (See Alki Partners, LP v. DB Fund Services, LLC (2016)
4 Cal.App.5th 574, 590, fn. 8 [“courts will decline to consider any
39
factual assertion unsupported by record citation at the point where
it is asserted”].)
For the foregoing reasons, we reject Christine’s and Michael’s
arguments that the court enforced an agreement with terms
different from the agreement Christine made in May 2018.
3. Christine’s Alleged Lack of Consent to Esther as
the Recipient of $3 Million
Christine contends that she did not consent to the “additional
material terms” recited by Benjamin’s counsel on May 14, 2018,
after Christine and her attorneys left the courtroom. 24 Because
these terms were added in her absence, she argues, there was no
meeting of the minds as to these terms and therefore no contract.
In particular, Christine points to the agreement reached
among Benjamin, Esther, Margaret, and Helena that the $3 million
that Christine agreed to pay to Benjamin’s law firm’s trust fund
“goes to Esther.” Christine asserts that she “would never have
agreed to give a penny to Esther” and “would have never consented
to this term.” According to Christine, her $3 million payment
should have been added to the Trust corpus, which would have
benefited her children as residuary beneficiaries. Christine,
however, could have bargained for a provision requiring the money
be added to the Trust or distributed to particular persons (such
as her children) or not distributed to particular persons (such as
24 Christine asserts that she “was precluded from all
knowledge of the additional material terms added on May 14,
2018,” and that “[r]espondent coerced [her] into leaving the
[c]ourtroom to record Esther’s name.” The record, however,
indicates that the court invited Christine and her counsel to remain
in the courtroom “just in case,” but that Christine and her counsel
left voluntarily.
40
Esther). Christine made no such bargain, however, and upon
transferring the money as agreed, she had no right to direct what
happens to the money thereafter.
4. The Court’s Failure to Make a Finding as to the
Meaning of “Residue”
Christine next contends that the court never made a factual
finding concerning the meaning of the word, “residue,” as used in
the settlement agreement. Pursuant to term one of the agreement,
Christine agreed to waive “all rights to Trust A, including but not
limited to claims regarding Three Lanterns, Sycamore, and Atlantic
Towers. Such interest goes to the residue.” According to Christine,
the word “residue” could mean the “[r]emainder” of the trust estate
as defined in the Trust document or, as she understood it, “the
corpus of Trust A, since the family often referred to Trust A as
the Residue Trust.” If residue means the remainder of the Trust,
her interests in Trust A assets, including Three Lanterns and
Sycamore, would be distributed to the residuary beneficiaries.
According to Christine, however, she understood that she was
relinquishing her interests in Three Lanterns and Sycamore to
Michael.
Christine did not, however, raise this point in her opposition
to the motion to enforce the settlement. She refers us to her
declaration in support of her motion to set aside the settlement
agreement. But in that declaration, she states only that she
learned “what it meant for [her] property to enter into the ‘residue’
of [the] . . . Trust” after her accounting expert evaluated the
settlement. She does not state what her understanding was of
the Trust residue either before or after the accountant explained
it to her. Thus, even if the court considered her declaration
in connection with the motion to enforce the settlement, her
declaration is insufficient to raise the issue she asserts on appeal.
41
In any case, the meaning of “residue” in the context of trust
and probate litigation has a readily understandable meaning
as the surplus of the estate remaining after the payment of debts
and the distribution of specific bequests and devises. (See Estate
of Lawrence (1941) 17 Cal.2d 1, 8; Blech v. Blech (2018) 25
Cal.App.5th 989, 1003; Estate of Keller (1955) 134 Cal.App.2d
232, 241; § 21117, subd. (f).) Here, with respect to Trust A—in
which Three Lanterns and Sycamore were held and which was
the subject of term 1 of the settlement agreement—the reference
to the “residue” unambiguously refers to the provision of the Trust
document that provides for the distribution of “[t]he remainder
of Trust ‘A,’ after any payments and distributions by the [t]rustee
[of specific bequests] pursuant to the provisions of [specified]
subparagraphs” of the Trust document. Although the treatment of
such “remainder” under the Trust document is somewhat complex,
there is no reasonable reading of the Trust document that supports
Christine’s interpretation by which the Trust’s entire interest in
Three Lanterns and Sycamore as part of the residue, would be
given to Michael.
5. Chen’s Alleged Rejection of the “Settlement Offer”
Christine next contends that Chen rejected the “settlement
offer” in his July 23, 2018 report to the court on a proposed
“long form” agreement, and that his rejection “killed Christine’s
offer.” She argues further that Chen could not “revive” “the
offer” by his subsequent “purported acceptance.” The argument
is fundamentally flawed because, as the trial court found, the
settlement reached by the parties in court on May 14, 2018, was not
an offer, but an agreement subject to a condition, namely, Chen’s
approval. Specifically, Christine and the other parties present in
court agreed that the terms “affecting the Minors’ interests and
42
rights are subject to approval by the guardian ad litem.” The
phrase “ ‘[s]ubject to’ is generally construed to impose a condition
precedent.” (Rubin v. Fuchs (1969) 1 Cal.3d 50, 54.)
The court found that this condition of Chen’s approval was
met when Chen entered into the first GAL agreement and stated
that he “agrees to the terms of the Settlement Agreement” reached
in court on May 14, 2018. Chen reiterated his approval of the
settlement terms in his declaration filed in support of the motion
to enforce the settlement, in which he states his “agreement to the
terms of the settlement agreed to by the other parties on the record
before the [c]ourt on May 14, 2018.” The court’s finding is thus
supported by substantial evidence.
Christine further argues that even if Chen approved of
the settlement agreement, the additional terms in the first GAL
agreement differed from the settlement agreement and constituted
a rejection of the settlement terms. Christine, however, again
erroneously conflates the settlement agreement with Chen’s
separate agreement with other parties in the first GAL agreement.
Christine was not a party to the first GAL agreement and nothing
in that agreement alters any of Christine’s rights, interests, or
duties under the settlement agreement.
6. Alleged Unconscionability
Christine contends that the trial court erred in rejecting her
argument that the settlement agreement is unconscionable. “ ‘The
unconscionability doctrine ensures that contracts, particularly
contracts of adhesion, do not impose terms that have been variously
described as “ ‘ “overly harsh” ’ ” [citation], “ ‘unduly oppressive’ ”
[citation], “ ‘so one-sided as to “shock the conscience” ’ ” [citation], or
“unfairly one-sided” [citation].’ ” (Sanchez v. Valencia Holding Co.,
LLC (2015) 61 Cal.4th 899, 910–911.) The doctrine “ ‘ “has both a
43
procedural and a substantive element, the former focusing on
oppression or surprise due to unequal bargaining power, the latter
on overly harsh or one-sided results.” ’ ” (Id. at p. 910.) Both
elements must “ ‘ “be present in order for a court to exercise its
discretion to refuse to enforce a contract or clause.” ’ ” (Ibid.)
Christine contends that the settlement agreement “was
procedurally unconscionable because it contained terms that were
unknown to Christine prior to their announcement on the record.”
Although she uses the plural, “terms,” she refers only to her lack
of understanding of the word “residue.” She argues that the
agreement “was substantively unconscionable because its terms
were drastically harmful to Christine and her children, and any
bargain therein was illusory.” The arguments are without merit.
When the settlement was placed on the record, Christine
was present and represented by three attorneys from different law
firms. 25 After the terms were recited by her counsel, the court
asked her if she heard and understood “all of the terms,” and she
responded, “Yes.” She also answered affirmatively to the question
whether she “had enough time to speak to [her] lawyer about [the
terms],” and whether she agreed “to all of those terms.” Under
these circumstances, Christine has failed to establish procedural
unconscionability.
Regarding substantive unconscionability, we note that
Christine was facing claims by Benjamin, Margaret, and Esther
that she had committed financial elder abuse against King and
used her position as trustee de son tort to misappropriate more
25 One of Christine’s attorneys, Vikram Brar, was not present
for the trial. When later asked why he was not there, he explained
that being Christine’s attorney “doesn’t mean [he] would attend all
hearings.”
44
than $12 million in cash and $12.5 million in other property
interests from the Trust. In addition to damages for these losses,
the petitioners were seeking $14.4 million in statutory damages
and attorney fees (§ 859), punitive damages, and a determination
that Christine predeceased King pursuant to section 259.
The trial court, which was familiar with the case, explained
that, “even assuming [the petitioners] have likely exaggerated their
probability of prevailing at trial, proving unconscionability is still
a heavy burden for Christine: It is not enough to assert merely
that she may have prevailed but rather that the settlement terms
‘shock the conscience.’ This they do not where it appears there
was at least some probability Benjamin and the others might
have prevailed. Given their showing that Christine might not
have prevailed, it is not inconceivable to the [c]ourt that she might
have elected to avoid potentially greater losses by entering into an
agreement that may not be particularly favorable to her.”
On appeal, Christine does not attempt to show that she might
have prevailed at trial. Instead, she argues that the settlement left
her and the children “over $35 million worse off than if she had lost
the case on the merits.” She explains that if she had lost, she could
have been deemed to have predeceased King under section 259.
In that case, she contends, Michael would have received her share
of the Three Lanterns and Sycamore because the Trust document
provides that Michael is to receive these properties if both Robert
and Christine predecease King. Therefore, she argues, by
preventing her from losing at trial, the settlement “effectively
disinherited . . . Michael, thus leaving her family over $35 million
worse off than if she had lost the case.” (Boldface omitted.)
Christine’s argument is based on a misunderstanding of
section 259. Under subdivision (a) of section 259, a person who,
among other requirements, is liable for physical or financial
45
abuse or neglect of a decedent, will be deemed to have predeceased
the decedent “to the extent provided in subdivision (c).” (§ 259,
subd. (a).) 26 Under subdivision (c), a person who is liable under
subdivision (a) shall not “receive any property, damages, or costs
that are awarded to the decedent’s estate in an action described in
subdivision (a).” (§ 259, subd. (c).)
As one court has explained, a “person found liable under
subdivision (a) of section 259 is deemed to have predeceased the
decedent only to the extent the person would have been entitled
through a will, trust, or laws of intestacy to receive a distribution
of the damages and costs the person is found to be liable to pay to
the estate as a result of the abuse. Section 259 does not necessarily
eliminate the abuser’s entitlement to a share of the estate; it
simply restricts the value of the estate to which the abuser’s
percentage share is applied and prevents that person from
benefiting from his or her own wrongful conduct.” (Estate of Dito
(2011) 198 Cal.App.4th 791, 803−804, fn. omitted.) Thus, if the
co-trustees established Christine’s liability under section 259,
subdivision (a), and recovered property, damages, or costs from
Christine as a result of such liability, Christine could not receive
26 Subdivision (a) of section 259 provides that a “person shall
be deemed to have predeceased a decedent [for certain purposes]
where all of the following apply: [¶] (1) It has been proven by clear
and convincing evidence that the person is liable for physical abuse,
neglect, or financial abuse of the decedent, who was an elder or
dependent adult. [¶] (2) The person is found to have acted in bad
faith. [¶] (3) The person has been found to have been reckless,
oppressive, fraudulent, or malicious in the commission of any of
these acts upon the decedent. [¶] (4) The decedent, at the time those
acts occurred and thereafter until the time of his or her death, has
been found to have been substantially unable to manage his or her
financial resources or to resist fraud or undue influence.”
46
any share of the recovered property, damages, or costs. The
statute would not operate, as Christine suggests, to give Michael
alone property that is “awarded to the decedent’s estate.” (§ 259,
subd. (c).) Christine and “her family,” therefore, could not win
by losing, and her substantive unconscionability argument fails.
7. The Court’s Alleged Failure to Consider
Inseverability
Christine next argues that “the court failed to consider
inseverability by enforcing a modified agreement with terms
to which [she] did not consent.” (Boldface and capitalization
omitted.) She asserts that her “deal was inseparable from her
children’s” and, until the court approved the “precise terms”
affecting Jacqueline and Michael, “there was no settlement to
enforce.” In placing the terms of the settlement on the record on
May 14, 2018, however, the parties and their counsel made clear
that they were setting forth the terms of a binding agreement,
enforceable under Code of Civil Procedure section 664.6, subject
only to Chen’s approval. There is nothing in the record to suggest
that Christine was withholding her acceptance of the agreement
pending her review of other terms to which the Minors, through
their guardian ad litem, and others agreed. We therefore reject the
argument.
8. Michael’s Claim of Extrinsic Fraud by the Court
Michael contends that the order enforcing the settlement
agreement is unenforceable because the court did not intend
to perform it. He discusses at some length the law that permits
a contracting party to rescind a contract that was induced by
extrinsic fraud. He refers to orders made after his appeal in
this case in which the court allegedly required the Minors to
pay $500,000 in Chen’s legal fees and to sell the Taylor property.
47
These orders, he argues, are contrary to the terms of the settlement
agreement and indicate that “[t]he trial [c]ourt enforced the
settlement without any intention of performing it.” (Boldface
omitted.)
Aside from the fact that the trial court is not a party to the
settlement agreement and has no duty to perform any of its terms,
Michael’s assertions are made without citation to the record and, in
any case, are not encompassed within the scope of Michael’s notice
of appeal. Therefore, we reject the argument.
C. The Court’s Approval of the Second GAL
Agreement
Christine and the Minors challenge the court’s order granting
Chen’s petition approving of the second GAL agreement on the
following grounds: (1) Chen, as a guardian ad litem appointed
in one case only, did not have capacity to make the second GAL
agreement; (2) the court failed to hold an evidentiary hearing
on the petition; (3) the lack of notice to the Minors deprived them
of due process; (4) the agreement was not in the Minors’ best
interests; (5) the court failed to approve Chen’s attorney fees;
and (6) Christine and the Minors repudiated or disaffirmed the
settlement agreement and the second GAL agreement. We address
each in turn.
1. Chen’s Capacity to Make the Second GAL
Agreement
Jacqueline contends that Chen lacked capacity to make a
contract in Jacqueline’s name because, prior to March 2020, Chen
had been formally appointed the guardian ad litem in only one of
the many cases involving or related to the Trust. We reject this
argument.
48
Initially, we note that in proceedings under the Probate Code,
the court is not necessarily required to appoint a guardian ad litem
for minors involved in the proceedings. Under section 1003,
the court “may, on its own motion or on request of a personal
representative, guardian, conservator, trustee, or other interested
person, appoint a guardian ad litem” for a minor “if the court
determines that representation of the interest otherwise would
be inadequate.” (§ 1003, subd. (a).) 27 The word “may” implies
discretionary decision-making authority (People v. Moine (2021)
62 Cal.App.5th 440, 448), and, as the statutory text indicates, such
discretion is to be guided by the court’s determination regarding
the adequacy of the representation of the minor’s interest in the
absence of a guardian ad litem.
In the absence of an appointment of a guardian ad litem, the
Minors were not, as Jacqueline asserts, representing themselves
“in pro[.] per.” Rather, the court is “the guardian of the minor”
(Serway v. Galentine (1946) 75 Cal.App.2d 86, 89 (Serway)), and
the guardian ad litem is appointed, if at all, “ ‘ “merely to aid and to
enable the court to perform that duty of protection.” ’ ” (Williams v.
Superior Court (2007) 147 Cal.App.4th 36, 49–50 (Williams); see
27 Section 1003’s discretionary appointment power contrast
with the requirement under section 372 of the Code of Civil
Procedure that “[w]hen a minor . . . is a party, that person shall
appear either by a guardian or conservator of the estate or by a
guardian ad litem appointed by the court in which the action or
proceeding is pending.” (Code Civ. Proc., § 372, subd. (a)(1), italics
added.) “The general provisions for appointment of a guardian
ad litem” under Code of Civil Procedure section 372, however,
“do not apply in probate proceedings. Instead, the matter is
governed by [section] 1003.” (Ross & Cohen, Cal. Practice Guide:
Probate (The Rutter Group 2021) ¶ 3:558.)
49
Cole v. Superior Court of City & County of San Francisco (1883) 63
Cal. 86, 89 (Cole) [“[t]he court is, in effect, the guardian—the person
named as guardian ad litem being but the agent to whom the court,
in appointing him (thus exercising the power of the sovereign
[s]tate as parens patriœ) has delegated the execution of the trust”]).
Therefore, the fact that a guardian ad litem had not been appointed
for the minors in particular probate proceedings does not mean that
the minors were representing themselves.
In light of the discretionary authority provided by
section 1003, the absence of an appointment of a guardian ad litem
would ordinarily imply that the court found that it could adequately
protect a minor’s interest, if any, and that the aid of a guardian
ad litem was not required. Here, however, the court indicated that
its failure to appoint a guardian ad litem was an “oversight” on
its part and a “clerical issue” and “administrative defect,” which
it “cur[ed]” when the court granted Chen’s request to be appointed
guardian ad litem in the related cases.
Whatever the reason for failing to appoint a guardian
ad litem in particular related cases, there is no merit to Jacqueline’s
assertion that she represented herself in pro. per. in those cases.
Where a guardian ad litem was not appointed to act as the court’s
aid or agent in performing the court’s duty to protect the Minors’
rights, the court merely proceeded without the aid of a guardian
ad litem in performing that duty. In this light, we see no legal
significance in the fact that Chen had not been appointed guardian
ad litem in the related cases when he negotiated the second GAL
agreement. As guardian ad litem in at least one of the Trust
litigation cases, he negotiated an agreement ostensibly to aid the
court in its duty of protecting the Minors’ interests. The fact that
the agreement encompasses claims the Minors may have in related
cases—over which the court acted as the Minors’ guardian without
50
the aid of a guardian ad litem—means only that Chen arguably
provided more aid to the court than his case-specific appointment
required. Although the court had the power and duty to reject such
aid if it determined that the agreement was not in the Minors’ best
interests, there is no bar to accepting such aid. Therefore, the fact
that Chen had not been appointed guardian ad litem in all cases in
which the second GAL agreement affected the Minors’ rights did not
preclude the court from approving of the second GAL agreement.
2. Christine’s Standing to Oppose the Petition for
Approval of the Second GAL Agreement
Among other rulings made at the hearing held on March 3,
2020, the court denied standing of the co-trustees and Christine to
object to Chen’s petition for approval of the second GAL agreement.
“Proceedings on a [guardian ad litem’s] [p]etition for [a]pproval,”
the court explained, “are fundamentally between the [M]inors, the
[guardian ad litem], and the [c]ourt—and nobody else.” Christine
and the Minors challenge this ruling.
The approval of a petition or motion to approve a
minor’s compromise is governed by section 3500, subdivision (b),
sections 3600−3612, Code of Civil Procedure section 372, and
rules 7.950 through 7.952 of the California Rules of Court. 28 None
of these statutes or rules requires notice or an adversary hearing to
28 Although the appointment of a guardian ad litem in
probate proceedings is governed by section 1003, the Probate Code
does not provide for a guardian ad litem to compromise a minor’s
claim. Code of Civil Procedure section 372, which does permit
a guardian ad litem to compromise a minor’s claim with court
approval, thus provides the applicable rule. (See § 1000 [except
where Probate Code provides an applicable rule, the rules
of practice in civil actions applies].)
51
approve a minor’s compromise. (Pearson v. Superior Court (2012)
202 Cal.App.4th 1333, 1337, fn. 2 (Pearson); Weil & Brown, Cal.
Practice Guide: Civil Procedure Before Trial (The Rutter Group
2021) ¶ 12:579; see Burge v. City and County of San Francisco
(1953) 41 Cal.2d 608, 614 [“[a]lthough it would ordinarily be better
practice to hold a hearing and take testimony, the [predecessor to
section 3500] does not require it”].) Thus, the Pearson court stated,
albeit in dictum, “it would appear that a petition to approve or
disapprove a minor’s compromise may be decided by the superior
court, ex parte, in chambers.” (Pearson, supra, 202 Cal.App.4th at
p. 1337, fn. 2; see 4 Witkin, Cal. Procedure (6th ed. 2021) Pleading,
§ 80 [application for approval of a minor’s compromise is made
ex parte and may be heard in chambers].)
The question whether Christine had standing to oppose
Chen’s position is complicated by that fact that she was the
Minors’ parent and their guardian ad litem in one case—the ILIT
litigation—directly affected by the settlement agreement. A person
in her position is arguably entitled to participate in the hearing
at which her children and wards have much at stake. The weight
of such status, however, is arguably diminished by the fact that,
although Christine is a parent and guardian ad litem, the court
found that she had a conflict of interest with the Minors and
“appears to be using the Minors to pursue her own agenda”—
an agenda that is “inconsistent with the Minors’ interest[s].”
We need not decide whether the court erred in determining
that Christine lacked standing with respect to the petition for
approval. Even if the court erred, Christine has failed to establish
prejudice. The record demonstrates that the court considered
Christine’s demurrer to Chen’s petition for approval on the merits
and addressed her arguments on the petition at the hearing. In
her demurrer, Christine argued, among other arguments: (1) her
52
repudiation of the second GAL agreement precluded the court’s
approval; (2) Chen is not the guardian ad litem in all matters
affected by the agreement; (3) the pending appeals bar
consideration of Chen’s petition for approval; and (4) Chen failed
to provide any basis to show that the second GAL agreement is
better than the previously rejected agreement. The court was also
aware of Christine’s and the Minors’ positions as expressed in their
repudiations of the agreements.
In addition, after the court’s ruling, Christine filed a motion
for reconsideration and a motion for new trial, each supported by
voluminous evidence, including the declaration of an accounting
expert addressing the economic aspects of the second GAL
agreement. The court addressed Christine’s arguments in these
motions on the merits and at length in written rulings denying the
motion for new trial and granting in part and denying in part the
motion for reconsideration. 29
On appeal, Christine does not point to any evidence or
argument that the trial court failed to consider and address at
one hearing or another, and she does not explain how she has been
prejudiced by the court’s ruling. Prejudice is not presumed, and
the appellant has the duty to show that an error is prejudicial.
(Vaughn v. Jonas (1948) 31 Cal.2d 586, 601; see Paterno v. State of
California (1999) 74 Cal.App.4th 68, 106 [“the appellant bears the
duty of spelling out in his brief exactly how the error caused a
miscarriage of justice”].) Christine has failed to make that showing
29 Due to the COVID-19 pandemic, the court did not hear
oral argument on the motion for new trial, which was set for
April 23, 2020. It did hold a hearing on Christine’s motion for
reconsideration via remote video or audio conferencing on June 24,
2020. In addition to Christine’s counsel, Christine, Jacqueline, and
Michael were present by telephone.
53
here. In any case, based on our review of the record, it is not
reasonably probable that, in the absence of the alleged error,
Christine would have obtained a more favorable result. (See Cal.
Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
We therefore conclude that, if the court erred by ruling that
Christine lacked standing to oppose the petition, the error was
harmless.
3. The Court’s Approval of the Second GAL
Agreement
In determining whether to grant a guardian ad litem’s
petition to approve a settlement of the ward’s claims, a court
must determine whether it is reasonable and in the minor’s best
interest. (See Pearson, supra, 202 Cal.App.4th at p. 1338; Scruton
v. Korean Air Lines Co. (1995) 39 Cal.App.4th 1596, 1607 (Scruton);
Espericueta v. Shewry (2008) 164 Cal.App.4th 615, 626; see also
Cal. Rules of Court, rule 7.950 [petition for approval of a minor’s
compromise “must contain a full disclosure of all information that
has any bearing upon the reasonableness of the compromise”].)
We review the probate court’s ruling for an abuse of discretion.
(Breslin v. Breslin (2021) 62 Cal.App.5th 801, 806; Estate of Green
(1956) 145 Cal.App.2d 25, 28.)
Here, in approving the second GAL agreement, the court
relied in part on its comparison of what the Minors would receive
under the Trust document in the absence of a settlement and the
second GAL agreement with what the Minors would receive under
the second GAL agreement.
According to evidence submitted in support of the petition, if
the terms of the Trust document are applied without regard to the
settlement or the second GAL agreement, Jacqueline and Michael
would collectively receive $600,000 pursuant to the terms of Trust B
and $351,024 pursuant to an “Insurance Trust.” These amounts
54
do not appear to be in dispute. Because Robert predeceased King,
Benjamin, Jacqueline, and Michael would each receive one-third of
the Trust’s interest in the Taylor, Derek, Paularino, Calle Cristina,
and Domingo properties. Based on appraisals of the properties
reported by Christine’s expert, the values of the Minors’ collective
two-thirds interest in these properties, as of the date of the
May 2018 settlement, was $2,880,000, $2,260,000, $5,405,860,
$161,111, and $3,144,510, respectively, for a total of $13,851,481.
As residuary beneficiaries, they would also receive interests,
collectively valued at $91,736, in the Hellman property. Jacqueline
would also receive the Monterey Park residence valued at $840,000.
In addition, pursuant to the provisions of Robert’s separate property
trust, the Minors held remainder interests in the Paularino
and Domingo properties with present values of $1,678,623 and
$2,074,763, respectively. Their share of estimated estate taxes
and unpaid trust administration fees would be $2,153,660, and
$328,516, respectively. Therefore, based on these amounts, the
net value of the Minors’ collective beneficial interests in the Trust
in the absence of the settlement agreement and the second GAL
agreement would be approximately $17 million.
Under the settlement agreement and second GAL agreement,
the Minors would receive the same amounts due them under
Trust B ($600,000) and the insurance trust ($351,024), and the
same values attributed to the Hellman property ($91,736) and
the Monterey Park residence ($840,000). The primary differences
between the Minors’ entitlement under the Trust document and the
second GAL agreement arise from (1) what Chen refers to as the
“property swap”; (2) payments of cash to the Minors; (3) the absence
of the Minors’ liability for estate taxes and the Trust’s litigation
and administration expenses; and (4) the mutual releases and the
Minors’ waivers of past and future accountings.
55
Pursuant to the property swap, the Minors would receive
Benjamin’s one-third of the Trust’s interest in the Taylor, Derek,
Paularino, and Calle Cristina properties. The Minors’ interest in
these properties would thus increase by 50 percent and be valued
at $4,320,000, $3,390,839, $8,108,988, and $241,667, respectively. 30
The minors would swap, or disclaim to Benjamin, their combined
two-thirds interest in the Domingo property (valued at $3,144,510),
as well as their remainder interest in that property (valued at
$2,153,660).
The additional cash payments under the second GAL
agreement include, collectively, $1 million (out of the $3 million
Christine paid to Benjamin’s counsel’s trust account) 31 and
payments totaling $1,480,000 in exchange for the Minors’
20 percent interest in Sycamore—an interest they gained as
residuary beneficiaries after Christine waived her right to that
property in the settlement agreement. 32
30 Under the second GAL agreement, the Calle Cristina
property is to be “sold on the open market for fair market value.”
Jacqueline and Michael will receive their share of the net proceeds
as defined.
31 Arguably, the $3 million Christine paid to Benjamin’s
counsel’s “trust account” should have been considered part of the
Trust corpus and distributed to the residual beneficiaries. If so,
the Minors, as residuary beneficiaries, were entitled to receive,
collectively, 20 percent of the $3 million. Even if this argument
is accepted, the amount they received from this source under the
second GAL agreement—$1 million—is 66 percent more than the
$600,000 they could have received as residuary beneficiaries in the
absence of the second GAL agreement.
Under the Trust, neither Minor had an interest in Three
32
Lanterns, Sycamore, or Atlantic Towers; because Robert had
56
The provisions protecting the Minors from liability for estate
taxes and unpaid litigation and Trust expenses are valued at
$2,482,176.
Based on these amounts, the Minors’ collective net value
under the settlement agreement and second GAL agreement would
thus be approximately $22 million—approximately $5 million
more than what they were entitled to receive under the terms
of the Trust. In addition, Chen produced evidence that the
additional income to the Minors resulting from the increased
interest in the Taylor, Derek, and Paularino properties would more
than offset, by approximately $100,000 per year, the loss of income
that results from disclaiming the Domingo property to Benjamin.
Christine and the Minors contend, however, that the second
GAL agreement deprived the Minors of “real and unique properties”
worth between $25 million and $35 million. The theory is based
primarily on the assumption that Michael had an interest in, or
“stood to inherit,” Three Lanterns, Sycamore, and Atlantic Towers.
The assumption, however, is unfounded, as the Trust document
unambiguously provides for such properties to be given to
predeceased King and Christine had not, these properties were
to be distributed to Christine. Under the settlement agreement,
Christine agreed to waive her interest in these properties, which
would then become part of the residue of the trust estate. The
Minors, as 10 percent residuary beneficiaries under the Trust,
would thus be entitled to a share of these properties. According
to Chen’s petition, Three Lanterns and Atlantic Towers are to be
“liquidated and used to pay the [e]state [t]axes for the Trust.” As
a result, “[t]here is no portion of those assets that remain to be
distributed to the Minors.”
The $1,480,000 payment is for the Minors’ residuary share of
Sycamore’s fair market value based upon the net fair market value
as determined by “Christine’s designated expert appraiser.”
57
Christine. Michael was a contingent beneficiary under the Trust
who would have been entitled to Three Lanterns and Sycamore only
if Christine predeceased King. Because that did not occur, Michael
was not entitled to these properties.
The further assumption that “unique properties,” such as
family heirlooms and jewelry, were bequeathed to the Minors is
similarly without support. Christine relied on a provision of the
Trust document stating that the gifts of certain real properties
includes “any personal property located on and used in connection
with such real properties,” for the assertion that Jacqueline stands
to inherit the antiques located in the Monterey Park residence,
which King had bequeathed to her. The provision Christine relied
on, however, relates only to real properties held in Trust C; the
Monterey Park residence is held in Trust A. The provision devising
the Monterey Park residence to Jacqueline expressly entitles
Jacqueline to “the real property and improvements” only.
Christine also contends that the Minors would be entitled
to undistributed income from the Taylor, Domingo, Derek, and
Paularino properties, and that the $500,000 that each Minor will
receive out of the $3 million she paid to Benjamin’s counsel should
be compared with “the accumulated income of $6 million from [the
Minors’] expected inheritance properties.” She does not, however,
point to any provision of the Trust or other evidence to support the
Minors’ entitlement to any such income.
Christine and Michael also refer to claims the Minors have
against the co-trustees for “$100 million.” The purported claims
appear to be based upon allegations in a petition Christine filed
in February 2020, six days before the hearing on Chen’s petition
for approval of the second GAL agreement. Aside from their
belatedness, they are unsubstantiated in our record and the court
reasonably could, as it did, consider them speculative and decline to
58
give them any weight in evaluating the benefits of the agreement to
the Minors.
In addition to the economic benefits for the Minors obtained
in the second GAL agreement, the court also noted the benefit of
terminating this costly litigation and its drain on trust assets, 33
and considered favorably the fact that the property swap provisions
would disentangle the interests of the Minors and Benjamin.
Instead of Benjamin, Jacqueline, and Michael holding undivided
one-third interests in several properties, Jacqueline and Michael
will jointly hold interests in some properties while relinquishing
their entire interest in one property—Domingo—to Benjamin.
The separation will presumably avoid or reduce future litigation
among these individuals as well as avoid the need for future
Trust accountings to the Minors and the litigation that could arise
therefrom.
In light of the economic benefits the Minors obtained under
the second GAL agreement, the extrication of the Minors from
a situation where they would jointly hold property interests with
a half sibling hostile to them, the end to costly litigation, and the
peace that the settlement should provide for all sides, the court did
not abuse its discretion in approving the second GAL agreement.
4. The Failure to Provide Notice of Chen’s Petition
to the Minors
Michael and Jacqueline contend that they were entitled to
notice of Chen’s petition. They cite to sections 1460 and 1511.
Section 1460 governs the manner and timing of notice to a “ward”
(§ 1460, subd. (b)(2)), among others, “if notice of hearing is required
33According to Chen, attorney fees and costs relating to Trust
administration and litigation, for the period between June 1, 2016
and September 30, 2019, amounted to $14,693,290.
59
under this division.” (§ 1460, subd. (a).) The referenced division
covers the Guardianship-Conservatorship law (§ 1400 et seq.).
Section 1511 is also concerned with proceedings under that law.
Neither section 1460 nor section 1511 applies to a guardian
ad litem appointed pursuant to section 1003, nor to petitions to
approve a minor’s compromise, which are governed by Code of Civil
Procedure section 372.
Although the Minors had a right to be present at the hearing
on Chen’s petition (see Cal. Rules of Court, rule 7.952(a)), that
right can be “dispense[d] with” for good cause. Here, the court
waived that requirement at the request of Christine’s counsel with
respect to the hearing on the first GAL agreement. In response to
Christine’s motion for new trial after the ruling on the second GAL
agreement, the court noted that Christine did not seek “any update
on that requirement and did not herself attempt to bring the Minors
to the March 3, 2020 hearing.”
Even if the absence of the Minors at the hearing was error,
the Minors fail to establish that the error was prejudicial. Although
the court rejected the Minors’ repudiations of the second GAL
agreement, the court acknowledged that the “[r]epudiations made
the [c]ourt and Chen aware of the Minors’ positions” regarding
the second GAL agreement and, in response to Christine’s motion
for new trial, stated that, even if the court had considered the
repudiations, it is not “ ‘reasonably probable that a result more
favorable to [the Minors] would have been reached.’ ” Other than
the repudiations, which are discussed below, and the arguments
they assert on appeal, which we have rejected, the Minors do not
point to any argument they would have asserted if they had been
present. In light of the benefits to the Minors provided by the
second GAL agreement, as discussed above, and our rejection of the
60
arguments asserted on appeal, they have not established that the
Minors’ absence at the hearing was prejudicial.
Michael further contends his right to due process was violated
because Chen had waived his rights under the Trust, his right to
appeal, and his right to object to the second GAL agreement, and
his “right to claims of $100 million against the [co-trustees and
Chen].” His argument that Chen deprived him of his right to
appeal is moot because we have permitted Michael and Jacqueline
to appeal. Michael’s contention regarding the alleged loss of
$100 million in claims is, like Christine’s similar contention,
without support in the record. We reject the further claims that
Chen and the court deprived them of other rights as beneficiaries
under the Trust because they received countervailing benefits
under the second GAL agreement. (See In re Christina B. (1993)
19 Cal.App.4th 1441, 1454 [guardian ad litem can compromise
minor’s rights with “some countervailing and significant benefit”].)
5. Michael’s Argument Concerning the Omission of
Approval of Attorney Fees
Michael contends that the court erred “by omitting to
approve that [c]o-[t]rustees’ $20 million legal fees was funded
by Michael’s expected inheritance.” The somewhat incoherent
argument lacks apposite authority and pertinent citations to the
record. It appears to be based on the assumption that Michael
was entitled to the Three Lanterns property and to “expected
accumulated income from his various expected inheritance
properties,” including Sycamore, and the co-trustees breached a
duty owed to him by encumbering that property with a $6 million
debt. Michael was not, however, entitled under the Trust document
or otherwise to acquire Three Lanterns or Sycamore. We reject
this argument.
61
6. Christine’s Repudiations
Christine filed purported repudiations of the settlement
agreement and the first and second GAL agreements. She
purported to repudiate the agreements in her capacity as guardian
ad litem for the Minors in the ILIT case, as guardian of the Minors’
estates, as the Minors’ parent, and as trustee of a trust established
for Michael’s benefit.
In its March 3, 2020 consolidated ruling, the court
acknowledged that Christine would ordinarily have a right to object
or repudiate agreements made by her children, but stated that “she
is precluded from doing so here because her objection is inconsistent
with the Minors’ interests.” Christine contends that this was error.
We disagree.
Christine relies on Scruton, supra, 39 Cal.App.4th at p. 1606.
In that case, a guardian ad litem of two minors settled the minors’
tort claims against an airline and petitioned the court for approval
of the settlement. (Id. at p. 1600.) Prior to the hearing on the
petition, the guardian ad litem repudiated the settlement and
withdrew the petition. The defendant airline then filed a motion
to enforce the settlement, which the trial court granted. (Ibid.)
The Court of Appeal reversed. The court held that the
guardian ad litem could repudiate the settlement at any time prior
to the court’s approval of it, and the guardian ad litem’s repudiation
was entitled to “some deference.” (Scruton, supra, 39 Cal.App.4th
at p. 1608.) Notwithstanding such deference, the Scruton court
further explained that the trial court had the power to enforce a
settlement repudiated by a guardian ad litem if it finds that the
62
repudiation is “adverse to the best interests of the minors.” (Ibid.) 34
Because the trial court in Scruton failed to make such a finding, the
Court of Appeal reversed the judgment. (Ibid.)
Scruton reflects the general principles discussed above that,
with respect to minors, the “court is, in effect, the guardian” and
the guardian ad litem’s actions are subject to court supervision.
(Cole, supra, 63 Cal. at p. 89; accord, McClintock v. West (2013)
219 Cal.App.4th 540, 549; County of Los Angeles v. Superior Court
(2001) 91 Cal.App.4th 1303, 1311 (County of Los Angeles); Serway,
supra, 75 Cal.App.2d at p. 89.) Under such supervision, the court
may “rescind” a guardian ad litem’s actions that are “inimical to the
legitimate interests of the ward.” (Regency Health Services, Inc. v.
Superior Court (1998) 64 Cal.App.4th 1496, 1502; accord, Zapanta
v. Universal Care, Inc. (2003) 107 Cal.App.4th 1167, 1175.) Thus,
as Scruton indicated, the court could reject a guardian ad litem’s
repudiation of an agreement if the court determines the repudiation
is “adverse to the best interests of the minors.” (Scruton, supra, 39
Cal.App.4th at p. 1608.)
Although Scruton was concerned with guardian ad litem’s
repudiation of an agreement, the same principles apply to a parent
of a minor. Because the “court has the responsibility to protect
the rights of a minor who is a litigant in court,” it “has the inherent
authority to make decisions in the best interests of the child, even
34 According to Jacqueline, Scruton held that the trial court
can consider whether the agreement is in the best interest of
the minor only if the guardian endorses the agreement. This is
incorrect. (See Scruton, supra, 39 Cal.App.4th at p. 1608 [“we hold
the trial court here could not unilaterally and summarily enforce
the repudiated compromise without first determining whether, in
rejecting the agreement, [the guardian ad litem] had acted contrary
to the best interests of the minors”].)
63
if the parent objects.” (Williams, supra, 147 Cal.App.4th at p. 49,
italics added; accord, In re Marriage of Metzger (2014) 224
Cal.App.4th 1441, 1448.)
Here, Christine and the Minors analogize Christine to the
guardian ad litem in Scruton, whose repudiation was entitled
to some deference. (Scruton, supra, 39 Cal.App.4th at p. 1608.)
Christine, however, is not in the same position as the guardian
ad litem in Scruton. There was only one guardian ad litem
in Scruton; here, there are two—Chen and Christine—each
presumably entitled to some deference under Scruton, yet with
diametrically opposing views as to the benefits of the agreements
for the Minors. As between these two, the scope of Chen’s
appointment, which encompasses the Trust litigation that is the
primary focus of the settlement and second GAL agreement, would
appear to warrant greater deference to his view than to Christine’s.
Although Christine is the guardian ad litem in the ILIT case and
the guardian of the children’s estates, the relationship of these
cases to the settlement appears to be incidental.
More importantly, the court found that Christine has
a conflict of interest in purporting to represent the Minors in
repudiating the agreements. We review that determination for
an abuse of discretion and any underlying factual findings for
substantial evidence. (See Haraguchi v. Superior Court (2008)
43 Cal.4th 706, 713 [abuse of discretion standard applies where
trial court is in better position to “evaluate the consequences of a
potential conflict [of interest] in light of the entirety of a case”].)
Christine’s interest in defending the co-trustees’ claims
against her is in conflict with the Minors’ interests because
what the co-trustees recover from Christine for her alleged
misappropriation of Trust assets would be available to the
residuary Trust beneficiaries, including the Minors. If, on the
64
other hand, Christine successfully defended against such claims,
she would retain what the co-trustees were seeking in damages
and there would be correspondingly less to distribute to the
beneficiaries, including the Minors.
Christine’s conflict of interest is also apparent with respect
to the settlement and second GAL agreements. If Christine
is successful in opposing the second GAL agreement (thereby
causing the settlement agreement to fail due to the failure of that
condition), she would benefit by retaining her claims under the
Trust document to Three Lanterns, Sycamore, and Atlantic Towers,
while the Minors would be denied the benefits of having such
properties added to the Trust residue, as well as denied the receipt
of Benjamin’s interests in the Taylor, Paularino, Derek, and Calle
Cristina properties and the additional income these properties
would produce. They would also be denied the receipt of cash
payments and favorable tax provisions that would be unavailable
to them without the settlement. The Minors, along with other trust
beneficiaries, would also have to endure further litigation at the
expense of the Trust estate.
The court, therefore, did not abuse its discretion in finding
that Christine has a conflict of interest with the Minors. In light
of these conflicts, any deference she would arguendo otherwise be
due as a guardian ad litem under Scruton is negated or severely
limited.
Christine contends, however, that she made an irrevocable
assignment of her interest in Three Lanterns and Sycamore
to Michael and that her and Michael’s interests are therefore
“completely aligned.” She has not developed this point, and
Christine does not explain how such an assignment would avoid the
conflicts between her and the Minors. In any case, the purported
assignment was made in April 2019, almost one year after she
65
waived her rights to Three Lanterns and Sycamore in the May
2018 settlement agreement. By that point, she had no interest
in these properties to assign. As the co-trustees contend, the
assignment “had no legal effect.”
Even if Christine has no conflict of interest with the
Minors and her repudiations were entitled to some deference
under Scruton, the court could reject the repudiations if they are
“adverse to the best interests of the [M]inors.” (See Scruton, supra,
39 Cal.App.4th at p. 1608.) Although the court did not expressly
rely on this rationale, it is implicit in its determination that the
second GAL agreement is in the Minors’ best interest and its
finding that Christine’s repudiations were intended to deny the
Minors the benefits of that agreement. Because the court did not
abuse its discretion in determining that the second GAL agreement
was in the Minors’ best interests, the court’s implied determination
that Christine’s repudiations were adverse to the Minors’ best
interests is also not an abuse of discretion.
7. The Minors’ Repudiations
The Minors contend that they disaffirmed the settlement
agreement and the second GAL agreement when they filed their
repudiations of the agreements. They rely on the general principle
that “a contract of a minor may be disaffirmed by the minor before
majority or within a reasonable time afterwards.” (Fam. Code,
§ 6710; see, e.g., Berg v. Traylor (2007) 148 Cal.App.4th 809, 820
(Berg) [“ ‘[a] contract (or conveyance) of a minor may be avoided by
any act or declaration disclosing an unequivocal intent to repudiate
its binding force and effect’ ”].) This rule exists to protect minors
“against [their] own improvidence and the designs of others. The
policy of the law is to discourage adults from contracting with an
infant and they cannot complain if as a consequence of violating the
66
rule they are injured by the exercise of the right of disaffirmance
vested in the infant.” (Burnand v. Irigoyen (1947) 30 Cal.2d 861,
866.)
As the cases Jacqueline cites illustrate, the principle has been
applied to permit minors to disaffirm a minor’s execution of a deed
of trust (Lee v. Hibernia Savings & Loan Society (1918) 177 Cal.
656, 659), a minor’s contract for personal services (Berg, supra,
148 Cal.App.4th at p. 817), a minor’s execution of a deed (Sparks v.
Sparks (1950) 101 Cal.App.2d 129, 137), a minor’s execution of a
promissory note (Niemann v. Deverich (1950) 98 Cal.App.2d 787,
793), and a minor’s contract for the purchase of real property
(Maier v. Harbor Center Land Co. (1919) 41 Cal.App. 79, 80−81).
The Minors, however, have not referred us to a case in which
a minor disaffirmed an agreement entered into by the minor’s
guardian ad litem subject to court approval.
The general principle the Minors rely on—that a minor
may disaffirm a contract before reaching majority—is subject
to the proviso: “Except as otherwise provided by statute.”
(Fam. Code, § 6710.) Code of Civil Procedure section 372,
subdivision (a)(1) expressly provides that a court-appointed
guardian ad litem “shall have power, with the approval of the
court in which the action or proceeding is pending, to compromise
the same, to agree to the order or judgment to be entered therein
for or against the ward . . . , and to satisfy any judgment or
order in favor of the ward . . . or release or discharge any claim
of the ward . . . pursuant to that compromise.” This statute thus
authorizes a guardian ad litem to make settlement agreements
in judicial proceedings subject only to the approval of the court.
(See County of Los Angeles, supra, 91 Cal.App.4th at p. 1311;
Safai v. Safai (2008) 164 Cal.App.4th 233, 245.) To allow a minor
to disaffirm a contract negotiated by the guardian ad litem would
67
negate this authority. It thus falls squarely within the “otherwise
provided by statute” exception to the general rule under Family
Code section 6710 allowing minors to disaffirm contracts.
The exception is also supported by sound policy. The policy
of discouraging adults from contracting with a minor is outweighed
by the policy that favors settlement of litigation; if a minor could
disaffirm a settlement agreement negotiated by his or her guardian
ad litem, litigants opposing minors would have little incentive
to seek a settlement with the minor, resulting in a waste of the
litigants’ and judicial resources. The policy concern supporting the
general rule of protecting minors against their own improvidence
and the design of others is accommodated by the requirement that
the court must approve the agreement reached by the guardian
ad litem.
Jacqueline relies on a statement in Pearson, supra, 202
Cal.App.4th 1333, that while a guardian ad litem’s “petition
for approval of [a minor’s settlement agreement] is pending[,]
the settlement agreement is voidable only at the election of the
minor or his guardian.” (Id. at p. 1339.) Jacqueline points to the
disjunctive “or” to argue that, prior to judicial confirmation of the
settlement agreement, the agreement is voidable at the election of
the minor. The statement in Pearson, however, is dictum that does
not withstand scrutiny.
In Pearson, a minor, represented by a guardian ad litem,
sued a defendant to recover damages for personal injuries.
(Pearson, supra, 202 Cal.App.4th at p. 1336.) The parties settled
and the guardian ad litem filed a petition to approve the settlement
with the court. After the settlement was reached and before the
court approved it, the minor died. If the litigation had not settled,
the minor’s death would have extinguished his claim for damages
for pain and suffering. (Ibid.) The settling defendant then opposed
68
the petition for approval of the settlement. The trial court granted
the motion because, as a result of the extinguishment of pain and
suffering damages, the settlement “would result in a ‘windfall’ for
plaintiffs.” (Id. at pp. 1336−1337.)
The guardian ad litem in Pearson filed a petition for writ
of mandate in the Court of Appeal to compel the trial court to
grant the motion for approval of the settlement. The court issued
the writ, and explained that “while the motion for approval of
the minor’s compromise is pending, the settlement agreement is
voidable only at the election of the minor or his guardian. Neither
the letter nor the spirit of [Code of Civil Procedure] section 372
confers any right on the defendant . . . to object when the court
approves or disapproves of a settlement agreement.” (Pearson,
supra, 202 Cal.App.4th at p. 1337.)
Pearson was thus concerned solely with the question
whether a defendant who enters into a settlement agreement with
a guardian ad litem “can object to court approval of the settlement.”
(Pearson, supra, 202 Cal.App.4th at p. 1339.) The court had no
occasion to consider whether a minor can “void” a settlement
agreement entered into by his or her guardian ad litem. The
language Jacqueline relies on suggesting that the minor can do so—
that “the settlement agreement is voidable . . . at the election of the
minor” (id. at p. 1339)—even when the guardian ad litem continues
to seek the court’s approval of the agreement, is thus dictum.
Because the statement in Pearson is unsupported by authority or
sound policy, and contrary to our analysis of the interplay between
Code of Civil Procedure section 372 and Family Code section 6710,
we decline to adopt such dictum or extend Pearson’s holding to the
facts in this case.
69
D. Christine’s Additional Arguments
At pages 102 to 108 of her opening brief, Christine asserts
a series of arguments that lack citations to the record and citations
to pertinent legal authority, and are at times incoherent and
conclusory. These include the following assertions: The trial court
“failed its duty to carry out the Trustors’ [i]ntent and Christine’s
purpose of relinquishing assets of $35 million, to oversee [the
guardian ad litem] and [c]o-[t]rustees’ breach of fiduciary duty,
and to protect the minors”; “The Trustors and Christine had
expected that it should be the duty of the [c]ourt, [the guardian
ad litem] and the [t]rustees’ [sic] to carry out the Trustors’
irrevocable and indisputable intent that these real properties
relinquished by Christine should have gone to the [c]hildren, not
Esther, Margaret, Benjamin, Benjamin’s mother and wife (who
are not even the Trust beneficiaries)”; The minors “were deprived
by their expected inheritances, namely over $35 million in real
and unique real properties, including Sycamore, Three Lanterns,
Atlantic Towers, Taylor, family heirloom jewelries, and antique [sic]
in the amount, which carry a sentimental value from the Trustors
to the Minors and had generated substantial annual income of over
$1 million for over 50 years”; “Christine would not agree to give
Esther a penny (let alone $3 million cash, family heirloom jewelry
and antique [sic], and Three Lanterns and Atlantic Tower), since
Esther had sued Robert into an early [sic] and was the major
cause of Robert’s death”; The court “erroneously removed Christine
from protecting her children when enforcing the settlement on
June 24, 2020”; and “The [c]ourt erred in restricting Christine
from advocating for her purpose [sic] of relinquishing $35 million,
carrying out the Trustors’ intent and protecting her children, by
enforcing the settlement with adding 25 material terms, which
Christine has never consented to.” Because these points are
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undeveloped or incoherent and lack pertinent citations to the record
or legal authority, we decline to address them.
E. Order Denying Christine’s Petition to Remove
Chen as Guardian Ad Litem
1. Chen’s Alleged Conflict of Interest
Christine and Michael contend that the court erred in
denying Christine’s petition to remove Chen as the Minors’
guardian ad litem because Chen’s representation of both allegedly
created an unavoidable conflict of interest. The argument is
based on the same misunderstanding of section 259 discussed in
Discussion part B.6, ante.
Christine and Michael rely on the provision of the Trust
document that provides for the Three Lanterns and Sycamore
properties to be given to Robert if Robert is living when the last
trustor dies and, if Robert is not then living, to Christine and, if
neither Robert nor Christine is then living, to Michael. Christine
argues that due to this provision, Michael and Jacqueline had
divergent views as to whether Christine, if the case had gone
to trial, could have been deemed to have predeceased King for
purposes of section 259. Under Christine’s view of section 259,
if she is deemed to have predeceased King, Michael would receive
the Trust’s entire interests in Three Lanterns and Sycamore, and
Jacqueline would receive no interest in these properties. But if
Christine’s view of section 259 is incorrect, Three Lanterns and
Sycamore would be distributed as part of the Trust residue of which
Michael and Jacqueline are 10 percent beneficiaries. Christine
therefore contends that Michael’s interests are aligned with her
view of section 259, while Jacqueline’s interests are aligned with
the opposing view. Chen, Christine concludes, was thus conflicted
by the opposing interests of his wards.
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Christine’s view of section 259, as discussed above, is based
on an untenable construction of the statute. According to Christine,
if she is deemed to have predeceased King under section 259,
she has also predeceased King for purposes of the Trust bequest
that Michael shall receive Three Lanterns and Sycamore if she
predeceases King. The scope of the determination that one has
“predeceased a decedent” under section 259, however, is expressly
limited “to the extent provided in subdivision (c)” of that statute.
Subdivision (c) extends no further than to prevent a person found
liable under subdivision (a) or convicted of a specified crime
under subdivision (b) from receiving any of the property, damages,
and costs awarded to the decedent’s estate in an action described
in subdivisions (a) or (b). That is, it limits what the abuser can
receive; it does not expand the rights of others or create a rule
for interpreting provisions of a trust document. A determination
that Christine has predeceased King for purposes of section 259,
therefore, does not mean that Christine has predeceased King for
purposes of the bequest of Three Lanterns and Sycamore.
In this light, Christine’s and Michael’s argument that Chen
had a conflict of interest amounts to an argument that Chen had a
duty to assert an untenable position on behalf of Michael. He did
not. There was thus no conflict of interest and, therefore, no error
in denying Christine’s motion to remove Chen as guardian ad litem.
2. Chen’s Alleged Misconduct
Michael further contends that Chen should have been
removed because he made false statements regarding the
co-trustees’ legal fees in this litigation. Michael relies on alleged
statements and actions for which he provides no citation to the
record. He also relies on Chen’s involvement in certain post-appeal
orders, which Michael contends violate the terms of the settlement
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agreement and the second GAL agreement. These allegations
are also made without citation to the record and, in any case, are
not encompassed within the scope of Michael’s notice of appeal.
Michael further points to Christine’s experts’ declarations to the
effect that the second GAL agreement deprived the Minors of more
than $6 million in income from the Sycamore and Three Lanterns
properties. Even if these statements are credited, they are
expressly based on the assumptions that the settlement agreement
is not enforceable and that Michael “stood to inherit Christine
Chui’s interests in Sycamore.” These assumptions, however, are
unsupported by the record. For all these reasons, we reject these
contentions.
F. The Court’s Discharge of OSC Regarding Removal
of Co-trustees
On July 18, 2019, when the court granted Christine’s motion
for judgment as to the first GAL agreement, the court further
ordered that the co-trustees be suspended as trustees and issued
“an OSC why they should not be removed.” The court did not,
however, set a date for a hearing on the OSC. The parties (other
than Christine) thereafter entered into the second GAL agreement
and Chen petitioned for its approval. Replacement trustees for
Benjamin and Margaret were never appointed and the OSC does
not appear to have been addressed again until the court issued
its consolidated rulings on March 3, 2020. At that time, the court
discharged the OSC because the settlement agreement had “been
approved and [the] litigation [was] concluded.” The court thus
found “it unnecessary to proceed on the OSC.”
Christine and Michael argue that the court erred in
discharging the OSC. Because we have affirmed the court’s ruling
enforcing the settlement agreement and its approval of the second
GAL agreement, which effectively terminate Christine’s and the
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Minors’ interests in the Trust, Christine and Michael do not have
standing to seek removal of the co-trustees. Accordingly, we reject
this argument on that basis.
DISPOSITION
The orders are affirmed. Respondents are awarded their costs
on appeal.
CERTIFIED FOR PARTIAL PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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