Estate
of Wizel
Filed 10/16/13
Estate of Wizel
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
ESTATE OF LYDIA WIZEL,
Deceased.
___________________________________
A. EDWARD EZOR,
Plaintiff and Appellant,
v.
ROBERT BROWN et al., as
Conservator of the Person and Estate of Jill Wizel,
Defendants and Respondents.
B237990
(Los
Angeles County
Super. Ct.
No. BP101210)
ORDER MODIFYING OPINION
AND DENYING PETITION
FOR REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed
herein on September 16, 2013, be modified as
follows:
On page 21, paragraph 2, line 10,
please delete “We cannot consider this argument or alleged new evidence
for the first time on appeal. (In
re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1138.)†and
replace with:
However, a
final judgment cannot be attacked based on intrinsic fraud. (Philippine
Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d
1058, 1091 [“intrinsic fraud . . . that fraud which weakens
the opponent’s case, as for example by perjury on the witness stand . . . is
not a ground to reopen a judgment.
[Citations.]â€].)
The petition for rehearing is denied.
[There is no change in the
judgment.]
Filed 9/16/13
(unmodified version)
REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
ESTATE OF LYDIA WIZEL,
Deceased.
___________________________________
A. EDWARD EZOR,
Plaintiff and Appellant,
v.
ROBERT BROWN et al., as
Conservator of the Person and Estate of Jill Wizel,
Defendants and Respondents.
B237990
(Los
Angeles County
Super. Ct.
No. BP101210)
APPEAL
from a judgment of the Superior Court of Los
Angeles County,
Reva G. Goetz, Judge. Affirmed.
Dennis
V. Greene for Plaintiff and Appellant.
Law
Office of Jeffrey C. Squire and Jeffrey C. Squire for Respondent,
Robert Brown.
Morris & Associates
and James G. Morris for Ellie Page as Conservator for Respondent, Jill Wizel.
In
this case, the probate court found that a trustee of a decedent’s trust
(Trust), Edward Ezor (Ezor), breached his duties as a trustee. Ezor acted as co-trustee with one of the
beneficiaries, Jill Wizel (Wizel) to administer the Lydia Wizel Trust for the
benefit of Robert Brown (Brown) and Wizel.
The court concluded that Ezor breached his duties by delaying the
administration of the Trust, paying himself and his attorney excessive fees,
refusing to make any distributions to Brown, failing to investigate Wizel’s
competence to serve as a trustee, failing to pay Wizel’s medical insurance
premiums, and opposing the beneficiaries’ objections to his account without
reasonable cause and in bad faith.
The
probate court removed Ezor and surcharged him the excessive fees paid to him
and his attorney, the loss incurred by Brown due to Ezor’s failure to divide
the Trust assets, and the loss incurred by Wizel due to her lapse of medical
insurance. The probate court also surcharged
Ezor the attorney fees related to his opposition to the objections to the
account pursuant to Probate Code section 17211, subdivision (b).
Ezor
appeals. He contends that the probate
court erred in: (1) admitting
testimony by two of the experts; (2) excluding evidence of Brown’s unclean
hands; (3) finding that Wizel was incompetent to serve as trustee; (4)
applying a preponderance of evidence standard of proof to the issue of undue
influence; (5) finding that Ezor was personally liable for damages; (6) finding
that Brown and Wizel had contested his account; and (7) calculating
damages. He further contends that the
probate court should have held that Wizel was precluded from seeking relief
because she accepted fees and distributions from the Trust, and that he was not
directly responsible for the lapse of Wizel’s medical insurance.
We
find no abuse of discretion in the probate court’s order. Furthermore, the record supports the probate
court’s factual findings and those findings in turn support the surcharges
imposed on Ezor. Accordingly, we affirm.
AND PROCEDURAL BACKGROUND
1. The
Lydia Wizel Trust
The trial court proceedings
as evidenced by the limited record before the court were as follows.
dated June 12, 1991 and amended on August 3, 1993. The Trust provided that the settlor’s
principal residence be allocated to a separate sub-trust for Wizel and that
certain specific gifts be distributed.
The Trust further provided that the balance of the estate be divided in
half between Lydia Wizel’s children, Wizel and Brown, and allocated to separate
sub-trusts for the benefit of each of them.
Ezor and Wizel were named in the Trust as successor trustees.
Lydia
Wizel died on March 27, 2006. The Trust
contained the following assets for distribution into sub-trusts for the benefit
of Wizel and Brown: a condominium (Condo) with an equity of $100,000,
$12,948 in cash, and $437,671 in mutual funds less $65,000 in specific gifts to
be distributed to third parties.
Approximately a week after Lydia’s death, Brown notified Ezor that he
was named as a successor trustee. Wizel
was represented in her capacity as co-trustee by counsel Neil Solarz (Solarz).
On
December 9, 2006, Wizel was hospitalized for over two weeks in the psychiatric
unit at Brotman Memorial Hospital with a diagnosis of psychosis. Brown notified Ezor about Wizel’s
hospitalization and expressed concerns about Wizel’s competence to serve as
co-trustee. His concerns included
Wizel’s abuse of controlled substances, alcohol and illegal drugs, and her
gambling losses. Brown tried to persuade
Ezor to file a petition to have Wizel removed as a co-trustee. Ezor told Brown to gather declarations from
people who were knowledgeable about Wizel’s competence for Ezor to use in a
petition to have Wizel removed as co-trustee.
At
Ezor’s request, Brown submitted a declaration and solicited declarations from
four other individuals under penalty of perjury. Brown wrote that Wizel had lost over $100,000
gambling. A friend of Wizel’s wrote that
Wizel was concerned people were after her and could “barely take care of
herself.†The father of Wizel’s son
wrote that when Wizel was admitted to the hospital she was “ ‘delusional,
talking to herself, paranoid saying people were coming to get her,’ †and
that in the two weeks after her release, Wizel was not bathing or dressing in
fresh clothes. Wizel’s aunt wrote that
in November 2006 Wizel exhibited disoriented behavior, staring into space and
laughing for no reason. A relative of
Wizel’s wrote that, since the summer of 2006, Wizel’s speech was confused and
it was difficult to make sense of her statements.
Ezor’s
counsel discussed Wizel’s capacity to act as trustee with Solarz. On December 27, 2006, Solarz wrote to Ezor’s
counsel stating that “[a]fter extensive conversations with [Wizel’s] doctors
and interviews with [Wizel], and in light of [Wizel’s] release from Brotman
Medical Center, we have concluded that [Wizel] does not lack capacity to
continue to act as Co-Trustee of the Trust. . . . [W]e
will resist any attempt to remove [Wizel] as Co-Trustee of the
Trust. . . . â€
Later
that month, Ezor wrote to Solarz expressing concerns about Wizel’s fitness to
act as a co-trustee. Ezor referred to
Wizel’s possible gambling addiction and a “ ‘serious drug addiction.’ †In February 2007, Brown accused Ezor of not
fulfilling his duties as co-trustee based, in part, on his failure to file a
petition to remove Wizel as co‑trustee.
In
March 2007, Ezor’s counsel wrote to Solarz regarding the selection of
a licensed physician to evaluate Wizel and expressing concern that Wizel’s
mail was being sent to her residence such that Ezor did not know what bills
were “ ‘due, owing, and unpaid, including the house mortgage, insurance,
and property taxes.’ †Ezor’s
counsel also wrote to Brown stating that “ ‘if [Solarz] does not file
a Petition we will. The question of
[Wizel’s] capacity must be determined by the Court after examination by an
approved psychiatrist, and whether the Court may wish to appoint
a Guardian Ad Litem. . . .’ â€
Wizel
terminated her relationship with Solarz and met with Ezor on April 9,
2007.
with Wizel as co‑trustees. Several
days later, Ezor and Wizel paid themselves approximately $10,000 each as an
advance for their services as co-trustees.
On April 24, 2007, Ezor wrote a letter to Wizel indicating that he had
been trying to contact her “for weeks†and that he wanted to discuss the
“ ‘balance of trust matter[s] including final
distribution. . . .’ â€
On May 3, 2007, Ezor’s counsel wrote Brown that Wizel “ ‘has
cooperated fully in her duties as Co‑Trustee,’ †and “ ‘[a]s
such, there is no reasonable basis to ask the Court to remove her as Co‑Trustee.’ â€
3. Distribution
of the Condo
On
May 25, 2007, Ezor and Wizel filed a petition for instructions, in part, about
the Condo to be distributed by the Trust.
The Condo had been purchased by Lydia Wizel with a $100,000
downpayment. Brown was living at the
Condo and sought $40,000 in reimbursements from the Trust for expenditures
related to the Condo. Ezor and Wizel
requested instructions from the court “concerning possible expenditures†made
by Brown and as to whether to list the Condo for sale or transfer the Condo to
Brown. The court denied Brown’s request
for reimbursement on the grounds that he had not paid sanctions previously
ordered by the court. The court also
authorized the co‑trustees to levy 50% of the fair rental value of the
Condo to Brown’s account for the period of Brown’s occupancy.
Ezor
and Wizel subsequently distributed the Condo to Brown and valued it at the date
of death value of $490,000 without any credit for the $390,000 mortgage on the
Condo. Brown filed a motion to allow the
return of the Condo to the Trust on the grounds that the Condo had liabilities
in excess of its value. It is unclear
how the court ruled on this motion because no corresponding minute order is in
the record. The Condo was eventually
foreclosed upon.
4. The
Trust’s Payment of Wizel’s Bills
As
trustee, Ezor undertook to pay Wizel’s bills.
He relied on Wizel to bring in any bills that needed to be paid and then
advanced money to Wizel to pay those bills.
He also paid Wizel’s medical insurance premiums. Ezor did not take steps to have Wizel’s bills
directed to his office.
On
January 15, 2008, Ezor approved a sub-trust (Sub-Trust) for the benefit of
Wizel, and appointed Herb Cohen as Wizel’s co-trustee of the Sub-Trust. However, Ezor did not fund the Sub-Trust for
several months and continued to advance money to Wizel to pay bills that she
brought in to him. Ezor assumed that
Wizel’s medical insurance premiums were being paid during this time because
Wizel did not bring him the bill. On March 27,
2008, Ezor sent a check to Cohen to fund the Sub-Trust, however, Ezor
instructed that the entire check amount was to be applied to a mortgage
payment. The Sub-Trust was next funded
in May 2008. Wizel’s medical insurance
was terminated effective May 23, 2008.
On September 3, 2008, Cohen informed Wizel that there was approximately
only $24,000 in cash available to her in the Trust based on an account
indicating that Wizel had been advanced approximately $100,000.
5. The
Petitions, Account and Motion for Reconsideration
In
September 2008, Brown filed a Petition for Instructions seeking to have Ezor
and Wizel removed as co-trustees, to have them surcharged for breaching their
duties to the Trust, and for an account for the entire period of trust
administration, among other requests. In
May 2009, Ezor submitted an account for the period between February 9,
2007 through January 31, 2009. Brown
filed objections to the account on the grounds that: (1) the account was incomplete;
(2) had not been verified by Wizel; (3) did not account for certain
assets; and (4) reflected excessive fees paid to the trustees, among other
objections. Ezor later filed a
“supplement†to the account consolidating all previous accounts.
In
August 2009, the Court removed Wizel as co-trustee, suspended Ezor as co‑trustee,
and named Brown to replace Wizel.
name="_ftnref3" title="">
regarding the suspension. In November
2009, the court vacated the order suspending Ezor but deferred the issue of
what powers Ezor could exercise until trial.
Allowance of Fees asking for payment of his attorney fees, costs and accounting
fees, among other requests. In January
2010, the court appointed Ellie Page (Page) as the permanent conservator over
the person and estate of Wizel.
name="_ftnref5" title="">
attorney and trustee fees reflected in the account.
6.
The matter came on for a bench trial
starting in May 2010. The trial covered
five pending matters before the court:
(1) Brown’s Petition for Instructions seeking to have the co-trustees
surcharged for the breach of their duties to the Trust; (2) objections by
Brown to the account filed by Ezor; (3) Ezor’s motion for reconsideration
of the order suspending him as trustee; (4) Ezor’s Petition for Allowance of
Fees; and (5) the Petition for Instructions filed by Page seeking to
surcharge Ezor for his breach of Trust.
Two
psychiatrists testified at trial about Wizel’s mental competence to serve as
trustee. Dr. Stephen Read testified that
Wizel had the mental competence of an 8 or 9 year old child
based on her impaired executive function, her inability to generate direction
or take responsibility, and her lack of maturity. Dr. Lukas Alexanian testified that Wizel was
not continuously impaired but that, at times, she was competent and able to
care for herself.
Ezor
testified that he formed the opinion that Wizel was competent to act as
a trustee based, in part, on observing Wizel at their first meeting and
concluding that she was coherent and articulate and exhibited “normal†behavior. He further testified that Wizel always
cooperated with him in performing their duties as trustees, helping him with
the accounting and review of petitions, among other tasks.
Ezor’s
testimony was undercut by that of Pamela Riet, an employee at Wachovia
Securities, who testified regarding Wizel’s attempts to withdraw money from the
Trust account between 2007 and 2009.
Riet testified that, when Wizel came to the bank, she seemed confused,
paranoid and desperate and talked about not having food and water. Riet further testified that she always called
Ezor to inform him when Wizel came to the bank.
Riet also asked Ezor if Wizel could be removed as trustee and Ezor told
her that unless Wizel was a danger to herself or others, his hands were tied.
7. The
Judgment
The
court concluded that Ezor should have known that Wizel was not competent to act
as his co-trustee, and that he breached his duties as trustee by allowing Wizel
to serve in that capacity.
name="_ftnref6" title="">
acting as a co‑Trustee, but as a puppet to facilitate [Ezor’s]
actions.†The court disagreed with
Ezor’s argument that Wizel’s acceptance of fees and distributions from the
Trust absolved him of liability for damages on the grounds that Wizel was not
competent to serve as trustee and did not understand what her duties as trustee
were.
The
court further found that Ezor’s account was insufficient and that Ezor’s
opposition to Brown’s and Wizel’s objections to the account was without
reasonable cause and in bad faith. With
respect to Wizel’s medical insurance policy, the court concluded that Ezor was
responsible for the lapse of insurance because he knew about Wizel’s
limitations and dependence on the Trust to pay her bills and, although he
usurped the Sub-Trust co-trustee’s ability to act by limiting the funding of
the Sub‑Trust, he did not act to ensure that her insurance premiums were
paid. The court also concluded that had
the Trust been divided pursuant to its terms and the Condo distributed to
Brown, Brown would have had enough funds to support the Condo payments and
might not have lost the property to foreclosure.
The
court concluded that Ezor had breached his duties as trustee in the following
ways: (1) he reimbursed Wizel for
expenses and created a sub-trust for her, but failed to do the same for
Brown; (2) he paid himself
excessive fees but did little work to benefit the Trust; and (3) he
delayed administration of the Trust and failed to divide the residual estate
into two sub-trusts.
The
court entered judgment against Ezor for $511,125.00 calculated as follows: (1) overpaid fees to Ezor and his
attorney in the amount of $60,750; (2) loss to Brown in the amount of
$242,809 based on the value of the assets Brown would have received had the
Trust been divided at the time of the settlor’s death; (3) $100,000 in
equity in the Condo lost to foreclosure; and (4) loss of $107,566 to Wizel
due to the lapse of her medical insurance.
The court also surcharged Ezor $204,901.50 for attorney fees related to
his opposition to the objections to the account. The court later entered an amended court
judgment with reduced damages against Ezor in the amount of $281,332
as well as attorney fees and costs in the amount of $204,901.50. Ezor filed a timely notice of appeal.
1.
“We presume that the court’s
order is supported by the record; if there is
in the record to support the court’s implied
finding of fact, the factual finding will be upheld. However, the conclusion the court reached
based upon those findings of fact will be reviewed by this court for
abuse of discretion.†(
Cal.App.3d 1667, 1671.) We apply the de novo standard of review when
determining whether the court applied the proper standard of proof. (Owen
v. Sands (2009) 176 Cal.App.4th 985, 989.)
2. The
Court Did Not Err By Allowing Dr. Read’s and Bruno’s Testimony
Ezor
contends that the court abused its discretion by allowing Dr. Stephen Read to
testify as to an opinion that was outside the scope of his deposition
testimony. Specifically, Ezor contends
that the court should not have allowed Dr. Read to testify that Wizel’s mental
deficits impaired her ability to appreciate the consequences of her acts as a
trustee. A judgment may not be reversed
by reason of the erroneous admission of evidence unless “[t]here appears of
record an objection to or a motion to exclude or to strike the evidence that
was timely made and was so stated as to make clear the specific ground of the
objection or motion.†(Evid. Code § 353,
subd. (a).) Here, Ezor does not dispute
that he failed to raise an objection at trial on this issue. As a result, the objection has been
forfeited.
Ezor
also contends that the court abused its discretion by allowing Gene Bruno to
testify about Wizel’s healthcare costs after the judge disclosed that she had a
personal connection to Bruno. Again,
Ezor failed to raise an objection on these grounds. Ezor argues that he did object because his
counsel, upon being informed by the judge that her children were friendly with
Bruno’s children, stated “[w]ell, I don’t know.
You need a new expert.â€
However, this comment is not a valid objection because it does not “make
clear the specific ground of the objection.â€
Read’s and Bruno’s testimony, Ezor has not explained how the result was
prejudicial to him. (Evid. Code
§ 353, subd. (b) [A judgment shall not be set aside by reason of
the erroneous admission of evidence unless “[t]he court which passes upon the
effect of the error or errors is of the opinion
that . . . the error or errors complained of resulted in a
miscarriage of justice.â€]; Cassim v.
Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 [A “miscarriage of justiceâ€
will be declared only when the appellate court concludes that “it is reasonably
probable that a result more favorable to the appealing party would have
been reached in the absence of the error.â€].)
3. The
Court Did Not Err By Excluding Evidence of Brown’s
“Unclean Handsâ€
Ezor contends that the
court’s exclusion of evidence concerning Brown’s “unclean hands†deprived Ezor
“of the ability to present relevant evidence to meet his burden of proof.†Ezor points to evidence that Brown made
“misrepresentations†when he sought to be appointed as trustee, that Brown took
actions as trustee in violation of court orders, and that Brown misused funds
from the Trust.
The
probate court correctly noted that any breach by Brown of his duties as trustee
would not be attributed to Ezor, who acted as trustee at a different time. Furthermore, the doctrine of “unclean handsâ€
is only applicable to plaintiffs found guilty of improper conduct, and here,
Brown is not a plaintiff. (
Cal.App.4th 298, 322 [“ ‘The [unclean hands]
doctrine demands that a plaintiff act fairly in the matter for which he seeks
a remedy.’ â€].)
Therefore, the court did not err by excluding evidence of Brown’s
“unclean hands.â€
4. The
Court Did Not Err in Finding that Wizel’s Acceptance of Funds
From Ezor Was Not
a Defense to Ezor’s Breach of His Duties As Trustee
Ezor contends that the court
erred by disregarding his argument that Wizel was precluded from “seeking
relief†because she had accepted benefits from the Trust. “[W]here a beneficiary has consented to a
course of conduct and transactions by the trustee, he cannot later attack such
transactions. [Citations.]†(
Cal.App.2d 210, 223.) Here, the court
found Ezor liable for allowing Wizel’s medical insurance to lapse because he
failed to pay the insurance premiums.
Although a beneficiary may not challenge a transaction that she
consented to, Ezor had not identified any evidence indicating that Wizel
consented to his nonpayment of her insurance premiums. Therefore, Ezor has not shown that the court
erred by rejecting this defense.
5.
Finding That Wizel
Was Not Competent
to Act As Trustee
Ezor contends that the court
erroneously found that Wizel lacked the mental capacity to act as a
trustee. Ezor’s contention is, in
essence, an argument that substantial evidence does not support the court’s
finding. In support of this argument,
Ezor contends that Dr. Read’s psychiatric evaluation of Wizel was challenged by
Dr. Alexanian’s testimony, and that there was evidence that Wizel “was
functioning relatively well†when she met Ezor and “might have appeared
normal.â€
Ezor’s
argument that one expert’s testimony was more persuasive than that of another
is irrelevant to our analysis. We are
not allowed to re-weigh the evidence, and must view the evidence in the light
most favorable to the respondent. (
214, 216-217.) The trial court concluded
that Wizel lacked the capacity to act as trustee based on evidence that Wizel
was hospitalized for psychosis in December 2006, the declarations of five of
Wizel’s relatives and friends stating that Wizel was not mentally capable of performing
basic tasks, the testimony of Pamela Riet at Wachovia Securities that Wizel
seemed paranoid and confused when she attempted to withdraw funds from the
Trust, and the testimony of Dr. Read that Wizel had the mental competence of an
8 or 9 year old, among other evidence.
This constitutes substantial evidence supporting the trial court’s
determination that Wizel was not competent to serve as trustee.
6.
Proof
argues that the court should have applied the clear and convincing evidentiary
standard to findings that Ezor exercised undue influence upon Wizel. Ezor cites to the court’s finding that “Wizel
was not acting as a co-trustee based on her inability to do so. Fees paid to her were part of Ezor’s master
plan of manipulation and payments to Wizel were to ensure her compliance and
not as compensation for her services.â€
However, the issue addressed by the court was Wizel’s competence to
serve as a trustee, not whether Ezor was liable for undue influence. Ezor does not dispute that the court properly
applied the preponderance of evidence standard to findings related to Wizel’s
fitness to serve as a trustee. (
Cal.App.4th 1545 [“proof by a preponderance of the evidence generally
suffices to satisfy due process in civil casesâ€].)
7. The Court Properly
Found That Ezor Was Personally Liable for Damages
Ezor
contends that the court abused its discretion when it found that Ezor was
personally liable for his actions as trustee because Ezor presented unrebutted
expert testimony that Ezor acted reasonably in his capacity as a trustee. Ezor cites to Probate Code section 16650,
subdivision (b), which provides that if a trustee who commits a breach of
trust “has acted reasonably and in good faith under the circumstances as known
to the trustee, the court, in its discretion, may excuse the trustee in whole
or in part from liability [for loss resulting from the breach of trust] if it
would be equitable to do so.†Ezor
appears to be arguing that the court should have exercised its discretion to
excuse Ezor from his breaches of duty as a trustee based on grounds of equity.
Expert
testimony may be rejected by the trier of fact even if the expert is
uncontradicted provided that the rejection is not arbitrary. (Foreman
& Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890.) Here, although Ezor’s expert testified that
Ezor acted reasonably in his capacity as a trustee, the record contained
substantial evidence supporting the conclusion that it would not be equitable
to excuse Ezor from his breaches of duty as a trustee. This included evidence that Ezor knew that
Wizel was incompetent to serve as trustee, that he did not administer the Trust
within a reasonable amount of time, and that he paid himself excessive fees,
among other facts. Therefore, the court
did not abuse its discretion in refusing to excuse Ezor from his breaches of
duty as a trustee.
title="">[9]
8. The
Court Properly Found That Brown and Page Contested the Account
Ezor
objects to the court’s award of attorney fees, arguing the court abused its
discretion in finding that Brown and Page “contested†his account. In awarding attorney fees, the court relied
on Probate Code section 17211, subdivision (b), which provides that “[i]f a
beneficiary contests the trustee’s account and the court determines that the
trustee’s opposition to the contest was without reasonable cause and in bad
faith, the court may award the contestant the costs of the contestant and other
expenses and costs of litigation, including attorney’s fees, incurred to
contest the account.â€
Ezor
filed an account on June 26, 2009. Brown
objected to the account after which Ezor filed a “supplement†to the
account. The court held that “[t]he
Supplement was not filed as a new or amended account. . . . The
Objections to the Account filed [by Brown] are still relevant to this matter
since they relate to the time period covered in both the original account filed
on May 21, 2009 and the expanded time period also described in [the Supplement filed
by Ezor on October 9, 2009], both pleadings included the time during which the
breaches of trust occurred. Objector was
not required to file additional objections to the Supplement.†Ezor argues that Brown’s objections to Ezor’s
initial accounting were mooted when Ezor filed a supplement to that account,
and that therefore, there was no “contest†to the account. Ezor also argues that Page did not “contestâ€
the account because she only objected to the attorney and trustee fees recorded
in the account.
Ezor
does not dispute that he failed to raise these arguments in the trial court,
and has therefore, forfeited them. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006)
136 Cal.App.4th 212, 226.) Furthermore, Ezor does not
cite to any authority in support of his contention that Brown did not “contestâ€
the account because he did not re-file his objections when Ezor supplemented
the account. Likewise, Ezor does not
cite to supporting authority for his argument that objections to excessive
attorney and trustee fees noted in an account are not a “contest†to the
account.
The
phrase “contests the trustee’s account†in Probate Code section 17211,
subdivision (b), is not defined within the statute, but the statute is
remedial and thus, should be read liberally to apply to contested matters
“relating to an account.†(
1588, 1596-1598.) With respect to
Brown’s objections, Ezor’s subsequent supplementing of his account covered the
same matters as the original account and was not filed as a new account. Therefore, Brown’s objections to the account
remained at issue. With respect to
Page’s objections to the attorney fees and trustee fee awards in the account,
even if these did not directly contest the account, they certainly contested
matters “relating to an account†and therefore, fall under Probate Code section
17211, subdivision (b).
name="_ftnref10" title="">
p. 1598.)
9. The
Court Did Not Award Excessive Damages
Ezor
raises five arguments. Ezor contends
that the court should have adjusted the damages award as follows: (1) the court should have credited Ezor
for the expenditures he made to preserve Trust property; (2) Brown’s award
should have been reduced based on the Condo rent Ezor deducted from Brown’s
share of the Trust; (3) the court should have credited Ezor for the funds
turned over to Brown when he became trustee; (4) the court erred in
concluding that Brown was entitled to damages for the loss of the Condo; and
(5) the court erred in finding that Ezor was responsible for Wizel’s lapse in
medical insurance.
The
court found that had the Trust been divided pursuant to its terms and
distributed in a timely fashion, Brown would have received $242,809 in cash and
real estate less amounts expended to administer the Trust within a reasonable
amount of time. Accordingly, in
calculating Brown’s loss due to Ezor’s breaches of his duties as trustee, the
court deducted from the $242,809 half of Ezor’s expenses for Trust operations
up June 30, 2007. Based on the finding
that the Trust assets should have been distributed by June 30, 2007, the court
refused to credit Ezor for expenses incurred for trust administration after
that date. Likewise, the court did not
deduct from Brown’s share of damages the rent assessed against him for his use
of the Condo on the grounds that this occurred after June 30, 2007.
Substantial
evidence supports the court’s conclusion that Ezor unreasonably delayed by not
administering the Trust by June 30, 2007.
In fact, Ezor does not dispute that the period between the settlor’s
death on March 27, 2006 and June 30, 2007, was a reasonable amount of time
within which the Trust should have been administered.
Trust property after that date were due to Ezor’s failure to administer the
Trust in a reasonable amount of time and should not have been charged to the
beneficiaries.
With
respect to the funds turned over to Brown as trustee, the court issued an
amended judgment that adjusted the damages award to take into account these
funds.
With
respect to the Condo, Ezor contends that the court erred in finding that the
foreclosure was caused by Ezor’s failure to make distributions to Brown. Ezor argues that the evidence established
that Brown did not pay the mortgage after he received title to the Condo in
March 2009. However, Ezor distributed
the Condo to Brown three years after the death of the settlor and only after
the value of the Condo had sunk below that of the mortgage on the
property. Therefore, evidence that Brown
did not make mortgage payments at that time did not absolve Ezor of the total
loss in value of the property due to his delays.
Lastly,
Ezor contends that the court erred in finding that he was responsible for the
lapse in Wizel’s medical insurance. Ezor
argues that the testimony at trial established that the Sub-Trust trustee,
Cohen, admitted that he knew the medical insurance premium “was due†and that
he also knew he had two months within which to make the payment. The record cited by Ezor does not show that
Cohen testified to those facts. In fact,
in the cited testimony, Cohen only testified that he had received the medical
insurance bill sometime prior to August 20, 2008. Wizel’s medical insurance was terminated
effective May 23, 2008. Ezor also argues
that after the trial, his counsel discovered that Cohen had concealed evidence
showing that he had written a check to pay Wizel’s health insurance
premium. We cannot consider this
argument or alleged new evidence for the first time on appeal.
51 Cal.3d 1130, 1138.)
The
judgment is affirmed. The respondents
shall recover their costs on appeal.
TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY,
Acting P. J.
WE CONCUR:
KITCHING,
J.
ALDRICH,
J.
name="_ftn1" title="">[1] Appellant’s
index selectively represents the record to the court, leaving out numerous
court orders. The orders the appellant
does provide are truncated such that multiple pages are often missing from
those orders. It is the appellant’s
burden to provide an adequate record on appeal.
(Amato v. Mercury Casualty Co.
(1993) 18 Cal.App.4th 1784, 1794.)
To the extent the record is inadequate, we make all reasonable
inferences in favor of the judgment. (
name="_ftn2" title="">[2] When
Wizel terminated her services with Solarz, her outstanding attorney fee bill
was $76,873.93.
