Opinion
G061021
05-30-2023
MICHAEL BAKKERS, as Trustee, etc., Plaintiff and Appellant, v. GABY J.P. BAKKERS et al., Defendants and Respondents.
Bradley R. Kirk &Associates and Bradley R. Kirk for Plaintiff and Appellant. Law Offices of John A. Belcher and John A. Belcher for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 30-2017-00902317, Edward W. Hall, Temporary Judge.
Bradley R. Kirk &Associates and Bradley R. Kirk for Plaintiff and Appellant.
Law Offices of John A. Belcher and John A. Belcher for Defendants and Respondents.
OPINION
O'LEARY, P. J.
Michael Bakkers challenges the probate court's order removing him as trustee of his parents' family trust, contending the order is both procedurally improper and factually unsupported. Finding no reversible error, we affirm.
FACTS
Paul and Joan Bakkers created a living trust and, in a 2013 amendment, named four of their children, including Michael and Gaby Bakkers, as beneficiaries, and named Michael as successor trustee. The parents subsequently purchased a house (the Whitman property) previously owned by their son Andrew Bakkers, with Michael serving as the realtor. Because the property was in foreclosure and could not be purchased by Andrew's relatives, Michael's girlfriend, Linh Nguyen, purchased it using funds from Joan. Nguyen signed a promissory note for $375,000 to be secured by a deed of trust against the property and then transferred it to Joan. The parents later successfully sued to cancel the deed of trust.
Because the parties share a last name, we refer to them by their first names.
In 2014, the parents executed another amendment to the trust, naming Gaby as trustee. After Joan passed away and Paul became incapacitated, Michael and other siblings challenged the 2014 amendment in the probate court and asked the court to remove Gaby as trustee, order her to prepare an accounting of the trust during her time as trustee, and appoint Michael as trustee. The court ultimately ruled that the amendment was invalid, resulting in Gaby's removal as trustee. By this time, Paul had also passed away, and thus Michael became the trustee, and title to the Whitman property passed over to the trust. The court ordered Gaby to file an accounting for the period in which she served as trustee, as Michael and the other challengers had requested. Gaby complied, and Michael objected to her accounting, leading to a trial.
In November 2021, shortly before the accounting trial, Gaby filed an ex parte application to remove Michael as trustee, advising that the hearing would be held on November 16, at the same time a hearing in the accounting trial was to take place. She complained Michael had sold the Whitman property at a price below market value, without court approval, without accounting to the other beneficiaries, and without paying creditors with recorded liens. In an attached declaration, Gaby alleged Michael had sold the Whitman property to a group that included his girlfriend and suggested this constituted "self dealing." She included a grant deed reflecting the transfer of the property to three individuals, including "Hong Linh Nguyen," and stated that "'Linh Nguyen'" was Michael's girlfriend, whom her parents had sued to invalidate the fraudulent deed of trust against the Whitman property. Gaby served the application on Michael, but her proof of service did not expressly indicate he was being served "as trustee." Michael filed no opposition to the ex parte application.
Gaby filed her application together with her son, Jeffrey Parham. Because the parties do not discuss Jeffrey's role in the controversy, we refer only to Gaby.
On November 16, Michael appeared in propria persona for the accounting hearing, planning to present his arguments in opposition to Gaby's ex parte application that same day. At the accounting hearing, Michael testified he had sold the Whitman property to cover trust expenses. He did not address Gaby's claim that he had transferred the property to his girlfriend. The probate court later granted Gaby's application, without holding a separate hearing, noting Michael had filed no opposition and had admitted to selling the property. The court suspended Michael and deferred his removal pending the parties' proposals for a successor trustee at the next hearing.
The evening before the next hearing, Michael, now represented by counsel, filed a "supplemental trial brief" regarding his "suspension/removal of trustee," along with a declaration, requesting reconsideration of the probate court's prior ruling. He asserted, inter alia, that contrary to Gaby's claims, he had sold the Whitman property for the benefit of the trust, for a good price, on the open market. Again, he did not address Gaby's claim that he had sold the property to his girlfriend. The court denied Michael's request and appointed an independent trustee. Michael timely appealed.
DISCUSSION
Michael challenges the probate court's order removing him as trustee, claiming it was both procedurally improper and factually unsupported. As explained below, we find no reversible error.
First, in his opening brief, Michael asserts, without any legal analysis or citation to authority, that the court lacked jurisdiction to remove him because there was no petition pending against him as trustee and because Gaby's application to remove him was served on him as an individual, rather than "as Trustee." Similarly, Michael asserts, without analysis or citation to authority, that the court violated his due process rights because he had no opportunity to conduct discovery or question witnesses. These conclusory assertions are insufficient to establish error in the court's ruling. On appeal, a trial court's judgment is presumed to be correct, and the appellant bears the burden to affirmatively establish error. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) "Appellant's burden also includes the obligation to present argument and legal authority on each point raised.... [I]t is not the appellate court's role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2022) ¶8:17.1, p. 8-6.) By failing to develop his arguments and support them with authority in his opening brief, Michael has forfeited his contentions. (Limon v. Circle K Stores Inc. (2022) 84 Cal.App.5th 671, 687 [where brief fails to provide legal argument with supporting authorities on particular point, "'"the court may treat it as waived, and pass it without consideration"'"].)
The relevant portion of Michael's opening brief states, in full: "There was no pending petition against Michael as Trustee. In fact, there was no pending petition against Michael for anything. In addition, Michael was not even in court as Trustee. [¶] Yet, in connection with Gaby's Accounting action, Gaby's attorney decided to file an ex parte application against Michael as Trustee. Of note is that the ex parte application was never served on Michael in his capacity as Trustee. [Record citation.] For these reasons, Michael believes that the trial court exceeded its authority to even consider the ex parte application - much less to grant it."
On that point, the entirety of the argument in Michael's opening brief is as follows: "Michael, as Trustee, was entitled to due process. He did not receive it. There was never a formal Removal Petition filed against him. As to the ex parte application, Michael was never served in his capacity as Trustee of the Trust. He had no opportunity to conduct discovery, to take depositions, to investigate the claims against him as Trustee, or to cross-examine witnesses prior to suspension/removal."
In his reply brief, Michael adds an attempt to distinguish Schwartz v. Labow (2008) 164 Cal.App.4th 417 (Schwartz), which Gaby discusses in her respondent's brief, but it is too late for a party to attempt to develop its arguments in its reply brief. (See Bunzl Distribution USA, Inc. v. Franchise Tax Bd. (2018) 27 Cal.App.5th 986, 998 [issue insufficiently raised in opening brief deemed forfeited, although it appeared in "slightly more developed form" in reply brief]; cf. American Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 276 ["Defendants may cite new authorities in support of arguments properly raised in the opening brief" (italics added)].)
We observe that Michael's contentions do not concern the probate court's subject matter jurisdiction, which cannot be forfeited. (See Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 339 ["'"[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent"'"].) The probate court's jurisdiction encompasses "the internal affairs of trusts" and "[o]ther actions and proceedings involving trustees ...." (Prob. Code, § 17000, subds. (a) &(b)(3).) Instead, his contentions suggest the court acted in excess of its jurisdiction, and they are thus subject to forfeiture. (See Schwartz, supra, 164 Cal.App.4th at pp. 426, 430 [challenge to removal of trustee without removal petition concerned only court's power or authority to act, not subject matter jurisdiction, and is therefore subject to estoppel principles].)
The probate court has general power and duty to supervise the administration of trusts and to respond to perceived breaches of trust (Blech v. Blech (2019) 38 Cal.App.5th 941, 955; Schwartz, supra, 164 Cal.App.4th at p. 427), including the express power to remove a trustee on its own motion (Prob. Code, § 15642; Schwartz, at p. 427). While Michael belatedly asserts in his reply brief that he never submitted to the court's jurisdiction as trustee, it is undisputed he had initiated the proceedings and filed a petition that sought to remove Gaby, order an accounting, and appoint him as trustee. (Cf. Schwartz, at p. 428 [trustee submitted to jurisdiction of court by petitioning court to settle his account and pass on his acts].) It is similarly undisputed Michael appeared before the court at the same time for which a hearing on Gaby's ex parte application had been scheduled, with the intent to argue in opposition to the application. Under these circumstances, Michael cannot establish that the court was without power to act.
Second, as to the factual basis for the probate court's ruling, Michael argues, inter alia, that he did nothing to justify his removal as trustee, that he merely sold the Whitman property for the benefit of the trust, and that the sale did not require court approval. Nowhere in his opening brief does Michael address the evidence before the court-and one of the grounds Gaby asserted for his removal-that he had sold the Whitman property to his girlfriend, who had previously served as a straw person in the purchase of the same property. Michael's failure to address this evidence in his opening brief forfeits his argument. (See Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218 ["A party who challenges the sufficiency of the evidence to support a finding must set forth, discuss, and analyze all the evidence on that point, both favorable and unfavorable"].)
At oral argument, Michael's counsel incorrectly asserted that Gaby raised her claim regarding the sale to his girlfriend for the first time in her respondent's brief on appeal. As noted, and as Michael's own reply brief concedes, this claim was before the probate court.
In his reply brief, Michael argues for the first time that, despite partial similarities in their names, the buyer Gaby pointed to was not his girlfriend. Although he concedes that "the primary reason the Court suspended/removed Michael was due to the . . . belief that Michael had improperly sold the Whitman Property to his girlfriend," he offers no explanation why he could not have addressed the "primary reason" for the ruling he seeks to challenge in his opening brief. Because he failed to address the issue in his opening brief, we do not consider his late contention. (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1295 ["we will not address arguments raised for the first time in the reply brief"].)
Even in his reply brief, Michael does not argue that selling trust property to his girlfriend would constitute insufficient grounds for removal, and we do not consider the issue.
Moreover, Gaby's declaration supplied substantial evidence for a finding that Michael had sold the property to his girlfriend. (See Trolan v. Trolan (2019) 31 Cal.App.5th 939, 957 [appellate court reviews removal of trustee for abuse of discretion]; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957 [under abuse of discretion standard, findings of fact are reviewed for substantial evidence].) Michael never denied or attempted to refute this evidence before the probate court.
In his belated attempt to refute it on appeal, Michael points only to a trial brief Gabby submitted in the accounting proceeding about six months before her ex parte application. In that brief, in the course of detailing prior litigation between the parties, Gaby identified Michael's girlfriend as "Linh Dan Nguyen," rather than "Hong Linh Nguyen," the name on the deed. This incidental statement in an unrelated brief was neither a judicial admission nor evidence before the probate court. (Do It Urself Moving &Storage, Inc. v. Brown, Leifer, Slatkin &Berns (1992) 7 Cal.App.4th 27, 37 ["attempt to elevate an unsworn statement made as part of the points and authorities supporting a motion to the level of a judicial admission is unfounded"]; Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1090 [information in memoranda of points and authorities prepared and filed by counsel was not evidence].) Additionally, naming conventions vary with culture and personal preference, and it is not uncommon for individuals to use a particular name in certain contexts despite having a different legal name-which would appear on a notarized deed, for example. Given Gaby's sworn testimony suggesting the Linh Nguyen listed on the deed was Michael's girlfriend, it would have been reasonable for the court to infer she and Linh Dan Nguyen were one and the same, particularly absent any attempt by Michael to deny the grantee was his girlfriend. (See In re Marriage of Nakamoto &Hsu (2022) 79 Cal.App.5th 457, 470 [under substantial evidence standard, appellate court must indulge every reasonable inference to uphold trial court's finding].) Accordingly, we find no reversible error in the probate court's removal of Michael as trustee.
We deny as unnecessary Michael's requests for judicial notice.
DISPOSITION
The probate court's order is affirmed. Respondents are awarded costs on appeal.
WE CONCUR: BEDSWORTH, J. GOETHALS, J.