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Linda E. Reagle et al v. Martha Ochoa et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


May 4, 2011

LINDA E. REAGLE ET AL., PLAINTIFFS AND APPELLANTS,
v.
MARTHA OCHOA ET AL., DEFENDANTS AND RESPONDENTS.

(Super. Ct. No. 34-2008-00003988PR-TR-FRC)

The opinion of the court was delivered by: Blease , Acting P. J.

Reagle v. Ochoa

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 attorney fees because they were not attacking the underlying trust, but only the trust amendment. Venue was transferred to Sacramento County.

On August 12, 2008, the Sacramento Superior Court issued a minute order granting Ochoa's request for attorney fees in the amount of $3,496. During the hearing the court ruled that it was not prepared to make a final determination on Ochoa's right to attorney fees until it had seen all of the evidence. As to the distribution of assets, the court expressed its opinion that if it distributed the assets prior to making a determination on all of the other issues, there was the potential of making the trust insolvent and unable to pay any attorney fees that might be ordered paid by the trust. The court proposed that the parties craft a compromise plan regarding distribution, "such that the Court is not placed in a position of either distributing all or distributing nothing" and continued the matter to August 27, 2008, to give the parties an opportunity to work on a compromise plan.

At the August 27, 2008, hearing, the probate court ruled "on the distribution pending final resolution of [the] case." The order made in open court was not reduced to a written order until March 18, 2009. On March 18, 2009, the court entered a written order: (1) declining to order Ochoa to deed Charles and Linda their interest in the commercial real property, (2) ordering two tiers of income payments, depending on the amount of cash reserves in the Survivor's Trust, and (3) consolidating the action with one filed by Charles and Linda pursuant to a petition for imposition of constructive trust and for emotional and fiduciary abuse of an elder.*fn1

Charles and Linda filed their notice of appeal on March 27, 2009. The notice appeals from the written order signed on March 18, 2009, denying the petition to pay all monthly income and to deed Linda and Charles their interest in the commercial real property.

Notably, the March 18, 2009, order does not include any mention of Ochoa's attorney fees. This order was made by the court orally and by written minute order on August 12, 2008. The court ordered payment of some of Ochoa's attorney fees and specifically declined to rule whether Ochoa's attorney fees would be precluded, "subject to review by a trial court after the trial court hears all of the evidence regarding the trust, the trust amendment, and the actions of the trustee." Accordingly, the notice of appeal does not include the order on attorney fees, and this order has not been appealed.

DISCUSSION

A ruling in a probate proceeding is not appealable unless expressly made so by statute. (McDonald v. Structured Asset Sales, LLC (2007) 154 Cal.App.4th 1068, 1072.) Appellants claim the order from which they appeal is appealable pursuant to Probate Code section 1300, subdivision (a), allowing appeal from a refusal to make an order of conveyance of property, and Probate Code section 1304, subdivision (a), allowing an appeal from denial of a final order with respect to a trust.*fn2

Probate Code section 1304 does not apply to any of the superior court's orders because none were final orders. The court's August 12, 2008, order regarding Ochoa's attorney fees was a decision not to decide the issue of attorney fees until the final decision in the case after the court had heard all of the evidence regarding the trust, the trust amendment, and the actions of the trustee. The August 27, 2008, orders regarding distribution of the interest and income from the commercial real property was specifically made "pending final resolution of this case."

Probate Code section 1300, subdivision (a) does not apply to the superior court's order regarding attorney fees, and even if it did, appellants have not appealed from that order. The order was issued in open court on August 12, 2008. The attorney fees ordered by the court were in a minute order dated that same date. The court's order dated March 18, 2009 (the written order that was the result of the August 27, 2008, hearing) makes no mention of attorney fees. This is the only order from which appellants appeal.

Probate Code section 1300, subdivision (a) also does not apply to the superior court's order regarding the distribution of income from the property, because such does not constitute an order making or refusing to make an order "[d]irecting, authorizing, approving, or confirming the sale, lease, encumbrance, grant of an option, purchase, conveyance, or exchange of property."

That leaves only one possible appealable order--the order refusing to convey to Linda and Charles their beneficial interest in the commercial real property pending the final resolution of the case. We conclude that this order also was not appealable.

Charles and Linda's argument is that the order refusing to direct Ochoa to make a trust distribution consisting of their interest in the commercial real property was erroneously based upon the superior court's finding that it must wait until the underlying case is tried to determine whether Ochoa is entitled to attorney fees for the purpose of defending the trust amendment. Citing Whittlesey v. Aiello (2002) 104 Cal.App.4th 1221 and Terry v. Conlan (2005) 131 Cal.App.4th 1445, they argue they are not attacking the validity of the trust and that the litigation is for the benefit of Ochoa, thus she is responsible for her own attorney fees. Since they argue the trust will not be responsible for Ochoa's attorney fees as trustee, they argue there is no reason the trust assets should not be distributed to them now.

Appellants assert this order is appealable under Probate Code section 1300, subdivision (a) as an order refusing to make an order of conveyance of property. They are wrong.

The appealability of a probate court order is determined from its legal effect and not from its form. (In re Estate of Martin (1999) 72 Cal.App.4th 1438, 1442.) Here, the effect of the order was to defer distribution of the trust assets to a later time. It is clear from the court's statements as well as the nature of the order that the court did not intend finally to refuse to distribute or convey the trust property, but only to delay the distribution until such time as it could be assured that the trust assets were sufficient to cover its debts.

When making its order at the August 12, 2008, hearing regarding the payment of Ochoa's attorney fees, the probate court stated it was not prepared to make the determination about fees, "until the Court sees all of the evidence regarding all of the allegations concerning the amendment, its validity, et cetera, et cetera, because it's an integral decision of the Court, and, furthermore, Mr. Browne [appellants' counsel], what you are asking the Court is to distribute the assets of the trust prior to making the determination on all of the other issues and thereby potentially making the trust insolvent and unable to pay these attorney's fees that might be justifiably ordered to be paid by the trust." The court then directed the parties to come up with a compromise plan regarding distribution such that the court would not be placed in the position of distributing all or nothing.

At the next hearing on August 27, 2008, the court ruled "on the distribution pending final resolution of this case." The court stated that it was making the distribution order, "pending trial and/or final resolution in this matter . . . ." Although the written order, prepared by appellants' counsel, states simply that the court "declines to order Trustee Martha Ochoa to deed Petitioners their claimed aforesaid property interests," the conclusion is inescapable that this was not intended to be a final order, but only an order delaying the final distribution of trust assets.

The order here is analogous to that issued in Estate of Keuthan (1968) 268 Cal.App.2d 177. There, the probate court denied without prejudice an estate administrator's petition for payment of the balance of fees and denied distribution without prejudice pending determination of an heirship proceeding. (Id. at pp. 178-179.) The court noted that appealability of the order was governed by former Probate Code section 1240, which provided in pertinent part: "'An appeal may be taken from an order . . . distributing property; refusing to make any order heretofore mentioned in this section; . . .'" The court dismissed the appeal, concluding that the probate court had not passed on the merits of the petition for distribution, and had indicated by denying the petition without prejudice that the order was merely a postponement. (Estate of Keuthan, supra, 268 Cal.App.2d at p. 180.)

The same analysis applies here. The probate court's refusal to distribute the trust assets pending final resolution of the case did not have the effect of refusing to convey property, but was merely a postponement of the determination regarding distribution of assets that did not constitute a final order having binding effect.

DISPOSITION

The appeal is dismissed. Respondents are awarded costs on appeal.

We concur: ROBIE , J. BUTZ , J.


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