Opinion
Page 15i
92 Cal.App.4th 15i PAT LOMBARDO et al., Plaintiffs and Appellants, v. KURT D. HUYSENTRUYT, Defendant and Respondent. A092345. California Court of Appeal, First District, Second Division September 12, 2001[Modification of opinion (91 Cal.App.4th 656, 110 Cal.Rptr.2d 691) on denial of petition for rehearing.]
This modification requires movement of text affecting pages 668-669 of the bound volume report.
KLINE, P. J.
The petition for rehearing filed by respondent on August 30, 2001 is hereby denied.
It is ordered that the published opinion filed herein on August 14, 2001 be modified in the following particulars:
1. The third sentence of the second paragraph on page 10 [91 Cal.App.4th 667, advance report, 2d. par., lines 4-5] will now read as follows: “In the case before us, there is clearly evidence that the probate court’s ruling was foreseeable.”
2. The first and second full sentences on page 11 [91 Cal.App.4th 667, advance report, 2d par., lines 15-18 and p. 668, lines 1-7] will now read as follows: “Even if the probate court was in fact wrong to insist on prior approval of the amendment, there was abundant evidence that respondent could have foreseen from the language of the conservatorship order that it might do so, and might have been able to protect against this result by seeking the prior approval the order appeared to require or attempting to clarify the interpretation of the order. Faced with a highly unusual order that appeared to impose a requirement for the amendment of the trust of an elderly client, in rapidly failing health, who unequivocally wanted to change the beneficiary of the trust, respondent had an obligation to take all reasonable steps to avoid having the conservatorship order interfere with the effectuation of his client’s wishes.”
3. At the end of the first paragraph on page 12 [91 Cal.App.4th 668, advance report, end of 1st par.] (following the quotation from Mattco Forge, Inc. v. Arthur Young & Co.), a new footnote is to be added and will read as follows: “We note that in the present case, if it should become necessary to
Page 15j
determine whether the probate court’s ruling was correct or incorrect, the responsibility to resolve this legal question would fall to the trial court and not to the jury. (See Martin v. Hall (1971) 20 Cal.App.3d 414, 420 [97 Cal.Rptr. 730, 53 A.L.R.3d 719].)” (Note: the numbering of the subsequent footnotes in the published opinion will change accordingly, i.e., footnote on page 18 will become fn. 3, and footnote on page 19 will become fn. 4 [91 Cal.App.4th 673, advance report].)
4. The sentence that begins at the bottom of page 12 and ends on the top of page 13, and the first two full sentences on the top of page 13 [91 Cal.App.4th 669, advance report, 1st par., lines 9-18], will now read as follows: “The trial court’s view of the case serves to exonerate respondent because of what it considered to be the probate court’s error when, according to the evidence offered by appellants, respondent could have headed off any such error by recognizing the ambiguity in the conservatorship order and acting to protect against the possibility that the probate court would enforce its harshest—but most literal—interpretation. Such exoneration would be appropriate only if the probate court’s alleged mistake could be viewed as a superseding cause. (Skinner v. Stone, Raskin & Israel, supra, 724 F.2d at p. 266.) Here, it could not, because there was evidence the probate court’s order was foreseeable.”
5. The first sentence in the second full paragraph on page 13 [91 Cal.App.4th 669, advance report, last par., lines 1-4 and p. 670, line 1] will now read as follows: “Appellants additionally maintain that the nonsuit should not have been granted because—independent of any error by the probate court—respondent was negligent in failing to deliver the trust amendment to the trustee during Winters’ lifetime, an omission that would have been fatal to the amendment if the probate court had considered it on the merits.”
This modification does not effect a change in the judgment.