Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV112230, PR157838
RUSHING, P.J.
Appellant Hal Selander appeals an order of the trial court denying his petition to remove Respondent James Valentine as trustee of the KMP Irrevocable Trust. On appeal, Selander asserts the trial court erred in refusing to remove Valentine as trustee, because Valentine is financially insolvent, and should not be serving in the capacity of a fiduciary.
Statement of the Facts and Case
Selander is the father of Kurt and Derek, and was appointed their guardian upon the death of their mother, Kelsey Phipps in 2001.
Valentine is the suspended trustee of a life insurance trust (hereinafter referred to as the “KMP Trust”) established by Kurt and Derek’s mother to provide for the “health, maintenance, education, travel, and welfare, and general welfare, ” of the boys at the time of her death. Phipps died in a plane crash on October 2, 2000.
Upon Phipps’s death in 2000, Selander became the single guardian of the boys. Valentine, a personal friend of Phipps, was named as trustee of the KMP Trust, and provided support for the boys pursuant to the provisions of the trust. In May 2001, the trust was funded with $20,524,234 from the proceeds of Phipps’s life insurance policy.
In March 2007, Selander filed a petition to remove Valentine as trustee because of financial losses to the trust. The court temporarily suspended Valentine as trustee pending trial, and appointed professional, interim trustees.
In January 2009, Selander filed a petition pursuant to Probate Code section 15642 to remove Valentine as trustee based on Valentine’s insolvency. The court denied the petition. At the time, trial was still pending in this case. Selander filed a notice of appeal.
All further statutory references are to the Probate Code, unless otherwise noted.
DISCUSSION
Selander asserts the trial court abused its discretion in denying his petition to remove Valentine based on Valentine’s insolvency.
Selander’s appeal is proper here. Under section 1300, subdivision (g), “an appeal may be taken from the making of, or the refusal to make, any of the following orders: [¶]... [¶] [s]urchargin, discharging, or removing a fiduciary.”
Section 15642, which provides for the removal of a trustee, states in relevant part: “(a) A trustee may be removed in accordance with the trust instrument, by the court on its own motion, or on petition of a settlor, cotrustee, or beneficiary under Section 17200. [¶] (b) The grounds for removal of a trustee by the court include the following: [¶]... [¶] (2) Where the trustee is insolvent or otherwise unfit to administer the trust.” (Emphasis added.)
The decision whether to remove a trustee “rests largely in the discretion of the trial court.” (Estate of Bixby (1961) 55 Cal.2d 819, 826.) Moreover, we review the court’s exercise of discretion deferentially. “In the absence of a clear showing of abuse, the court’s determination will not be disturbed on appeal.” (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 769.) “ ‘The test is not whether we would have made a different decision had the matter been submitted to us in the first instance. Rather, the discretion is that of the trial court, and we will only interfere with its ruling if we find that under all the evidence, viewed most favorably in support of the trial court’s action, no judge reasonably could have reached the challenged result.’ ” (Estate of Hammer (1993) 19 Cal.App.4th 1621, 1634.) That said, “[w]e do not defer to the trial court’s ruling when there is no evidence to support it.” (Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 452.) The court’s discretionary decision will be upheld “as long as its determination is within the range of the evidence presented.” (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 670.)
Here, Selander presented evidence accompanying his petition that Valentine is insolvent. Specifically, Selander cited Valentine’s previously filed declarations in related legal proceedings, in which Valentine claims to be “destitute, ” he is not paying his creditors, and he has no source of income, and has not had any source of income since he was removed as trustee in 2007.
In response to the petition, Valentine did not dispute his insolvency; rather, he argued that the court should not remove him as trustee because section 15642 is discretionary, and his financial problems are a direct result of being removed as trustee in the first instance. In support, Valentine requested the court take judicial notice of previous declarations and orders in related matters. The substance of the material demonstrated his education and business background, his relationship with Phipps, and his investment strategy while he actively served as the trustee. In his appeal, Selander focuses primarily on Valentine’s insolvency, and essentially argues that based on that insolvency, the trial court was required to remove him as trustee. However, section 15642 is clear that the court has discretion to remove a trustee for a number of reasons, including insolvency. The court is not required by section 15642 to remove a trustee.
Although Selander disagrees with the trial court’s ruling in this case, he does not establish that the ruling was the result of error. In appeals challenging discretionary trial court rulings, it is the appellant’s burden to establish an abuse of discretion. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) A showing of abuse of discretion is not made by merely arguing that a different ruling would have been better. Discretion is abused only when in its exercise, the trial court “ ‘exceeds the bounds of reason, all of the circumstances before it being considered.’ ” (Denham v. Superior Court, supra, 2 Cal.3d at p. 566.)
Here, we cannot say the court’s decision to deny the petition to remove Valentine as trustee “exceeds the bounds of reason.” (Denham v. Superior Court, supra, 2 Cal.3d at p. 566.) Indeed, the court’s decision finds support in longstanding legal principles. Valentine was specifically named by Phipps in the creation of the trust. It is well settled that a “named trustee will be removed only for extreme grounds, such as incapacity, dishonesty, or lack of the qualifications necessary to administer the trust.” (Copley v. Copley (1981)126 Cal.App.3d 248, 287.) This principal of law is sufficient grounds to support the court’s decision in this case. Selander has not met his burden of establishing that the court abused its discretion in denying the petition.
Disposition
The order appealed from is affirmed.
WE CONCUR: PREMO, J.ELIA, J.