(Super. Ct. No. 34-2008-00003988PR-TR-FRC)
The opinion of the court was delivered by: Blease , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellants Linda and Charles Reagle, brother and sister, file this appeal from a probate court order that declined to order respondent Martha Ochoa, the trustee of the Robert C. Reagle and Norma S. Reagle Survivor's Trust (Survivor's Trust) to deed the trust's real property to them and ordered a portion of the real property income to be distributed to Linda and Charles.
The underlying action is one to declare a trust amendment naming Ochoa trustee and a beneficiary of the Survivor's Trust invalid because of lack of capacity, undue influence, fraud, and mistake. The probate court has issued three interim orders in this case. One granted Ochoa a portion of her attorney fees and declined to rule on whether she is entitled to recover attorney fees for defending the instant action pending final resolution of the case. One order declined to distribute trust assets to Linda and Charles pending the final resolution of the case. One order directed distribution of a portion of the trust income to Linda and Charles.
The two latter orders were reduced to writing by appellants' attorney and signed by the probate court. It is from these two orders that appellants appeal.
We shall conclude that neither order is appealable. Neither order is a final order with respect to a trust pursuant to Probate Code section 1304. Neither order is a refusal to make an order of conveyance of property pursuant to Probate Code section 1304, subdivision (a). The order postponing the distribution of trust assets pending the determination of the underlying action, the only order that could potentially be considered a refusal to make an order of conveyance of property, is merely a postponement of the determination and is not appealable. We shall dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Robert and Norma Reagle, husband and wife, executed the Robert C. Reagle and Norma S. Reagle 2004 Revocable Living Trust. Linda and Charles were the daughter and son of Robert and Norma. Martha Ochoa was Robert's child by a previous marriage.
One piece of real property subject to the Robert C. Reagle and Norma S. Reagle 2004 Revocable Living Trust was a 70 percent interest in a commercial building in San Francisco. The trust document provided for a Decedent's Trust and a Survivor's Trust. Upon the death of the first spouse, the Decedent's Trust became irrevocable, but the Survivor's Trust could be revoked or amended by the surviving spouse. Linda Reagle was named trustee after the death of both trustors. Article Seven of the Robert C. Reagle and Norma S. Reagle 2004 Revocable Living Trust intentionally omitted any provision for Ochoa or her surviving issue.
Norma was the first spouse to die in December 2004. The Survivor's Trust, now with Robert as trustee, retained a 32 percent interest in the San Francisco commercial property. On October 25, 2006, Robert executed an amendment to the Survivor's Trust that deleted Article Seven (which intentionally omitted Ochoa), made Ochoa the trustee, and made Ochoa a beneficiary of the Survivor's Trust, granting her a 10 percent interest in the commercial real property in San Francisco. The other 22 percent interest in the commercial property was divided equally between Linda and Charles. Robert died in January 2007, at the age of 85.
The underlying action commenced when Linda and Charles filed a petition in Solano County to declare the trust amendment to the Survivor's Trust invalid because of lack of capacity, undue influence, fraud and mistake. In the same case, they filed a petition as beneficiaries of the trust alleging breach of trust against Ochoa for failing, inter alia, to make distributions in a timely manner, failing to furnish an accounting, and failing to make monthly income payments to the beneficiaries. Linda and Charles also argued that Ochoa had no right to ...