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Drake v. Pinkham

California Court of Appeals, Third District, El Dorado

May 28, 2013

ROSINA JEANNE DRAKE, Plaintiff and Appellant,
JANICE MARIE PINKHAM, as Trustee, etc., et al., Defendants and Respondents.

Pub. Order Date: 6/21/13

APPEAL from a judgment of the Superior Court of El Dorado County, Nelson K. Brooks, Judge. Super. Ct. No. PP20050111

Carver Law Offices, Judy L. Carver; Law Offices of Tosh G. Yamamoto and David J. Richardson for Plaintiff and Appellant.

Murphy, Campbell, Guthrie & Alliston, George E. Murphy, Suzanne M. Nicholson; Cudney, Gwinup, Hoffman & Hoffman, William Gaffaney and Sheri L. Hoffman for Defendants and Respondents.

BLEASE, Acting P. J.

Plaintiff Rosina Jeanne Drake (Gina) appeals from a summary judgment entered in favor of defendants Janice and Daniel Pinkham, Gina’s sister and brother-in-law, on Gina’s petition to invalidate two amendments to a revocable trust (Prob. Code, § 17200)[1], for a declaration that defendants predeceased the decedent (§ 259, subd. (a)), for imposition of a constructive trust, and for damages. The trial court found that six of the eight causes of action alleged in the petition are barred by the applicable statutes of limitation, and the remaining causes of action are barred by principles of collateral estoppel. The trial court did not reach the issue of laches. Gina appeals, contending defendants “failed to meet their burden of establishing that any of the three affirmative defenses [upon which the summary judgment motion was based] constitutes a complete defense to [her] causes of action, and that the motion for summary judgment should have been denied.” We shall affirm the summary judgment on the alternative ground of laches -- a theory the parties briefed and argued in the trial court and on appeal. (See California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22 [summary judgment may be affirmed on any correct legal theory, as long as the parties had an adequate opportunity to address the theory in the trial court].) Accordingly, we need not consider whether the causes of action are also barred by the applicable statutes of limitation or the doctrine of collateral estoppel.


Gina and Janice are the children of Theodore and Josephine Citta, now deceased.[2] In 1988, Theodore and Josephine established the Revocable Trust Agreement of Theodore Citta and Josephine Citta (Living Trust), which they amended in 1992, 1993, and 1999. Upon the death of both Theodore and Josephine, or in the event neither was willing or able to serve as trustee, Janice and Gina were to serve as co-trustees. Theodore died on December 31, 1999, and in accordance with the terms of the Living Trust, the trust estate was divided into two separate trusts -- the irrevocable Theodore Citta and Josephine Citta Family Trust (Family Trust) and the revocable Josephine Citta Trust (Survivor’s Trust). The Survivor’s Trust was established for Josephine’s sole benefit, and consisted of her separate property and her interest in her and Theodore’s community estate. The balance of the trust estate was allocated to the Family Trust. Upon Josephine’s death, all remaining assets of the Survivor’s Trust were to be distributed to the beneficiaries of the Family Trust as follows: one-half to Janice; and one-half to Gina.

In 2001, Josephine executed a fourth amendment to the Survivor’s Trust (Fourth Amendment), eliminating Gina as a beneficiary and naming Janice as the sole successor trustee. In 2004, Josephine executed a fifth amendment to the Survivor’s Trust (Fifth Amendment), designating Janice as her acting co-trustee and sole successor trustee.

In June 2005, Gina filed a petition asking the court to confirm her appointment as an acting co-trustee of the Living Trust, as amended in 1992, 1993, and 1999, based on Josephine’s alleged inability to care for herself or act as trustee, and Janice’s alleged undue influence over her. According to Gina, following Theodore’s death, Janice “began to progressively isolate Josephine” to the point that Gina no longer had contact with her mother, had “complete control over Josephine including her finances, ” and was acting as the sole trustee of the trust.

Josephine objected to the petition. While she admitted that Janice assisted her, she denied Janice had isolated her from Gina or that Janice had complete control over her or her finances. She also denied that she was unable to care for herself or act as trustee, or that Janice was acting as the sole trustee. In addition, she alleged that the Survivor’s Trust had been amended in 2001 (Fourth Amendment) and 2004 (Fifth Amendment) and, as amended, made no provision for Gina to serve as “trustee, co-trustee, alternate trustee or successor trustee....” Copies of the Fourth and Fifth Amendments were attached as exhibits to Josephine’s objections, which were served on Gina’s counsel.

Gina did not challenge the Fourth or Fifth Amendments. Rather, she entered into a settlement agreement, which was adopted as an order of the court in August 2006. In the settlement agreement, Josephine represented that she was the sole acting trustee of the Family Trust, and in her capacity as such and on behalf of all successor trustees, agreed “not [to] sell, encumber, lease, rent, transfer, or otherwise take any action affecting any real property of the Family Trust without prior notice to Gina... and Janice..., as provided herein.”

Josephine died on October 29, 2009.

On November 12, 2009, Janice provided Gina with two “Notification[s] by Trustee” as required under section 16061.7 -- one for the Family ...

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