Opinion
B293127
04-03-2020
Annemarie DONKIN et al., Plaintiffs and Respondents. v. Rodney E. DONKIN, Jr., et al. as Trustees, etc., Defendants and Appellants
Rodney E. Donkin, Jr., in pro. per., for Defendant and Appellant Rodney E. Donkin, Jr., as Trustee, etc. Vicki R. Donkin, in pro. per., for Defendant and Appellant Vicki R. Donkin, as Trustee, etc. Mark H. Boykin, Woodland Hills, for Plaintiffs and Respondents Annemarie Donkin and Lisa B. Kim.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of the Factual and Procedural Summary post , and the Discussion post , parts A. and B.
Rodney E. Donkin, Jr., in pro. per., for Defendant and Appellant Rodney E. Donkin, Jr., as Trustee, etc.
Vicki R. Donkin, in pro. per., for Defendant and Appellant Vicki R. Donkin, as Trustee, etc.
Mark H. Boykin, Woodland Hills, for Plaintiffs and Respondents Annemarie Donkin and Lisa B. Kim.
ROTHSCHILD, P. J. Appellants Rodney E. Donkin, Jr., and Vicki Rose Donkin (Trustees), as successor trustees of a family trust established by Rodney Donkin, Sr., and Mary Donkin (Trustors), appeal from an order in which the trial court rejected Trustees’ proposed interpretation of the trust, reflected in their petition for instructions. Specifically, the court concluded the trust was not a continuing discretionary spendthrift trust and instead obligated Trustees to distribute a portion of the trust estate to respondents Annemarie Donkin and Lisa B. Kim (Beneficiaries) "as soon as is practicable" after both Trustors died. The trial court further concluded that Beneficiaries’ efforts seeking such distribution via a petition for surcharge and to account were not barred by the statute of limitations in Probate Code section 16061.8, because these efforts did not constitute an action "contest[ing]" the trust. ( § 16061.8.)
Unless otherwise indicated, all further statutory references are to the Probate Code.
We agree with the trial court on both points. We further reject Beneficiaries’ contention that, because the Trustees represent themselves in their dispute with Beneficiaries regarding the interpretation of the trust, the Trustees engaged in the unauthorized practice of law. Accordingly, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
See footnote *, ante .
DISCUSSION
See footnote *, ante .
C. Unauthorized Practice of Law
Trustees represent themselves. Beneficiaries argue that such self-representation constitutes an unauthorized practice of law. We disagree.
In the section of their brief on "unauthorized practice of law" (capitalization omitted), Beneficiaries also argue that, because Trustees’ petition seeks an interpretation of the trust that would benefit Rodney, Jr., and Vicki personally, there exists a conflict of interest and Trustees are violating their fiduciary duties to the trust. The trial court’s order expressly states, however, that it "is not now ruling on whether Trustees breached their fiduciary duties at different times." This issue is thus not properly before us on appeal.
In Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 75 Cal.Rptr.2d 312 ( Ziegler ), Division Three of this court concluded that "[a] non-attorney trustee who represents [a] trust in court is representing and affecting the interests of the beneficiary and is thus engaged in the unauthorized practice of law. [Citation.]" ( Id. at p. 549, 75 Cal.Rptr.2d 312.) Ziegler did not involve probate proceedings, but rather a lawsuit between a mobilehome park and a trust—appearing, as a trust necessarily does, through its trustee. (See Powers v. Ashton (1975) 45 Cal.App.3d 783, 787, 119 Cal.Rptr. 729 [a trust can only be a party to litigation through a trustee].) In concluding the trustee could not represent himself in prosecuting the trust’s lawsuit against the mobilehome park, Ziegler explained that " ‘a trustee’s duties in connection with his or her office do not include the right to present argument [while representing himself] in courts of the state, because in this capacity such trustee would be representing interests of others and would therefore be engaged in the unauthorized practice of law. [Citations.]’ [Citations.] [¶] Stated otherwise, ‘[a] trustee must always act solely in the beneficiaries’ interest. [Citations.]’ [Citations.] The actions of the trustee affect the trust estate and therefore affect the interest of the beneficiaries. A non-attorney trustee who represents the trust in court is representing and affecting the interests of the beneficiary and is thus engaged in the unauthorized practice of law." ( Ziegler, supra , 64 Cal.App.4th at pp. 548–549, 75 Cal.Rptr.2d 312, italics omitted.)
Ziegler’s rationale is that the trustee was effectively speaking for the interests of the trust beneficiaries in the lawsuit against the mobilehome park and, as a nonlawyer, improperly representing those beneficiaries. ( Ziegler, supra , 64 Cal.App.4th at pp. 548–549, 75 Cal.Rptr.2d 312 ; cf. Aulisio v. Bancroft (2014) 230 Cal.App.4th 1516, 1519–1520, 179 Cal.Rptr.3d 408 [a self-represented trustee does not engage in the unauthorized practice of law under Ziegler when he is also the sole beneficiary, and thus is not representing the interests of another].)
This reasoning is closely connected with the specific facts in Ziegler . Namely, in non-probate litigation between a trustee and a third party (as in Ziegler) , the trustee is acting as a fiduciary for the benefit of the beneficiaries. But the same cannot be said when, as here, a trustee is seeking instructions regarding how to interpret the trust document or execute his or her duties thereunder. A trustee seeks such instructions in order to effectuate the intent of the trustor, not to represent the interests of the beneficiaries. (See Union Bank & Trust Co. v. McColgan (1948) 84 Cal.App.2d 208, 213, 190 P.2d 42 ( Union Bank ) [trustee’s broader duty is to "to carry out the terms of the trust according to the expressed intent of the trustor"].) Indeed, as is the case here, the beneficiaries may disagree with the trustee regarding the trust interpretation the court should adopt, and/or what the trustee’s duties are. Under these circumstances, the trustee is adverse to the beneficiaries and thus is not representing the beneficiaries’ interests. The same is true when a trustee disagrees with the need for an accounting or surcharge based on the trustee’s and beneficiaries’ varying understandings of the trust document.
Other cases involving conservatorship, including one on which Beneficiaries rely for their unauthorized practice argument, have made a similar distinction between probate litigation and litigation outside the probate context between a trust or estate and a third party. (Hansen v. Hansen (2003) 114 Cal.App.4th 618, 619, 7 Cal.Rptr.3d 688 ["a conservator, executor, or personal representative of a decedent’s estate who is unlicensed to practice law cannot represent himself when acting on behalf of the estate in matters outside the probate proceedings"]; City of Downey v. Johnson (1968) 263 Cal.App.2d 775, 778, 69 Cal.Rptr. 830 [nonlawyer conservator and executor could not represent estate in the defense of a condemnation action that "is not an integral part of the proceedings within the jurisdiction of the probate court"].)
The decision of Division Six in Finkbeiner v. Gavid (2006) 136 Cal.App.4th 1417, 39 Cal.Rptr.3d 871 ( Finkbeiner ) is instructive here. Finkbeiner concluded that, in probate litigation between a trustee and beneficiaries, the trustee was not engaging in the unauthorized practice of law by representing herself when filing a petition to modify and terminate the trust. ( Id. at p. 1421, 39 Cal.Rptr.3d 871.) The court distinguished Ziegler on the basis that the trustee in Finkbeiner "[was] not suing a third party. She filed the petition as part of her fiduciary responsibility to the court. [The trustee] correctly note[d] that trustees have various statutory duties. She was appointed by the court for the purpose of selling the property. She had a duty to account for trust assets, a right to seek her fees and a responsibility to notify the court if she felt maintaining an ineffective trust was wasteful to the trust estate. By filing her petition to modify and terminate the trust, she was simply fulfilling her duties as trustee. (See Prob. Code, § 17200 et seq. ) She was not engaged in the unauthorized practice of law." ( Finkbeiner, supra , 136 Cal.App.4th at p. 1421, 39 Cal.Rptr.3d 871.)
Like the court in Finkbeiner , we conclude that the reasoning in Ziegler does not apply to the matter before us. As in Finkbeiner , the instant matter is between trustees and trust beneficiaries in the context of probate proceedings, not between trustees and a third party in non-probate litigation. Of course, unlike in Finkbeiner , neither statute nor fiduciary duty required Trustees to file the petition for instructions at issue or to oppose Beneficiaries’ petition for surcharge and to account. Nevertheless, like a trustee filing a petition pursuant to a statutory mandate, Trustees here are seeking judicial clarification on how to interpret a trust document and not acting on behalf of the beneficiaries. Rather, Trustees and Beneficiaries are litigating a dispute about what precisely the trust requires. Therefore, as in Finkbeiner , Trustees may represent themselves in this dispute without engaging in the unauthorized practice of law.
We note, however, that Trustees have wasted both the court’s and Beneficiaries’ resources and time trying to relitigate issues already decided by the California Supreme Court in this case. We are cognizant of the possibility that, had Trustees been represented by an attorney, this may not have occurred. But this is a potential hazard of any self-representation, and cannot alone justify adopting a broader rule that all trustees seeking clarification regarding what a trust requires of them must take on the expense of hiring counsel. Whether Trustees must be represented by counsel in future proceedings will depend on the nature of the Trustees’ efforts in those proceedings, considered in light of our decision and the case law discussed above.
Moreover, absent the need to protect the interests of the beneficiaries as in Ziegler , requiring counsel for a trustee filing a petition for instructions in litigation with the trust beneficiaries could place an unjustified burden on small trust estates.
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DISPOSITION
The trial court’s order is affirmed. Respondents are awarded their costs on appeal.
We concur:
BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.