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Dana Bidou et al v. Mark H. Cibula

May 25, 2012

DANA BIDOU ET AL., PLAINTIFFS AND APPELLANTS,
v.
MARK H. CIBULA, AS EXECUTOR, ETC., DEFENDANT AND RESPONDENT.



(Super. Ct. No. 25140)

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

Bidou v. Cibula

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following a bench trial, the trial court determined that Franklin Cibula,*fn1 former trustee of the John B. Bidou Trust, breached his fiduciary duties as trustee. The court found in pertinent part that but for Cibula's breach, the trust estate would have accrued an additional $316,828 in profits.

Plaintiffs Dana Bidou, a trust beneficiary, and Enid Bidou,*fn2 the current trustee, appeal, contending the trial court erred in failing to award attorney fees (Prob. Code,*fn3 § 17211, subd. (b)); prejudgment interest (§ 16440, subd. (a)); or costs (§ 16420, subd. (a)(3)). They also assert that the court erred in concluding that Cibula "should be held accountable . . . through to his removal in 2007," as opposed to the entry of judgment in July 2010.*fn4

We shall conclude that plaintiffs are entitled to whatever additional profits would have accrued from the date of Cibula's removal as trustee to the entry of judgment and remand the matter to the trial court for a calculation of such damages. We shall otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are taken from the trial court's Statement of Decision or from the record and are undisputed except where otherwise indicated. Testator John R. Bidou died in 1977. His will created a trust for his four grandchildren and directed that the trustee hold the trust assets until each child reached age 35. Bidou's grandchildren are: Dana, who reached age 35 in 1997; Cory Bidou, who reached age 35 in 1999; John B. Bidou, who reached age 35 in 2003; and Marci Bidou, who reached age 35 in 2004.

After specific bequests, the will provided that the residue was to be placed in trust for the four grandchildren. The residue of Bidou's estate, which was placed in trust in 1978, consisted of cash in the amount of $102,701.66 and certain mineral rights that had an appraised value of $1,250.*fn5

The will named Bidou's son, John B. Bidou, Jr., as trustee. As of September 1980, the trust assets consisted of $86,945.30 in cash and the mineral rights. In June 1982, the court removed Bidou, Jr. as trustee and named Cibula successor trustee.*fn6

In September 2006, Dana filed a petition seeking an accounting and final distribution of the trust estate. Cibula had not filed any trust accounts since his appointment in 1982.

In November 2006, Cibula filed a petition for approval of first accounting of trustee. Dana opposed the petition, requested Cibula be removed as trustee, and sought attorney fees pursuant to section 17211, subdivision (b).*fn7

The court denied Cibula's petition for approval of first accounting; removed him as trustee; appointed Enid as successor trustee; and ordered him to "turn over all assets of the trust presently in his possession or under his control in the minimum amount of $233,432.00 to Enid Bidou as successor trustee; by 3/12/07." The court further ordered Cibula to pay Dana's attorney fees and costs in the amount of $13,616.35. Cibula turned over $233,432 to Enid and paid the $13,616.35 in attorney fees.*fn8

Nine months later, in February 2008, plaintiffs filed a petition for order redressing breach of fiduciary duty pursuant to section 16420, subdivision (a)(3), which authorizes a beneficiary "[t]o compel the trustee to ...


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