Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 328789, John F. Kraetzer, Judge. (Retired Judge of the Alameda County S.Ct. assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.)
Law Office of Daniel L. Mitchell and Daniel L. Mitchell for Plaintiff and Appellant.
Damrell, Nelson, Schrimp, Pallios, Pacher & Silva, Roger M. Schrimp, Betty L. Julian and James A. Oliveira for Defendants and Respondents.
OPINION
Kane, J.
This is a family dispute concerning allocation of valuable ranch properties and other assets that were placed in a living trust by George Brichetto (George) and Elizabeth Brichetto (Elizabeth), husband and wife. Following George’s death in 1990, assets in the living trust were to be segregated into subtrusts known as the Marital Trust and the Survivor’s Trust. The couple’s two sons, Louis Brichetto (Louis) and John Brichetto (John), were the remainder beneficiaries of the Marital Trust, but John alone was the remainder beneficiary of the Survivor’s Trust. In 2002, Louis filed the present action against Elizabeth and John in their capacities as trustees, challenging the allocation of assets between the Marital and Survivor’s Trusts as well as other allocations, exchanges or transactions that allegedly benefitted John over Louis. Louis alleged, among other things, that the trustees breached their fiduciary duties to him in regard to certain allocation decisions. The trial court denied all relief for two reasons: (1) Louis’s claims that sought reallocation of assets were clearly barred by the statute of limitations, and (2) there was no breach of fiduciary duties under the circumstances. Louis appealed, primarily contending the trial court failed to apply the correct standard in evaluating whether there were breaches of fiduciary duties. We will affirm the judgment.
Elizabeth and John are also referred to herein as the trustees.
FACTS AND PROCEDURAL HISTORY
The Trust
George and Elizabeth were the trustors of a living trust known as the Revocable Living Trust of George L. Brichetto and Elizabeth M. Brichetto, which was executed by them in 1987 and amended from time to time thereafter (the living trust). Since the Brichetto family has been in the ranching business for many years, the primary assets in the living trust were ranch properties. The living trust provided for the creation of three subtrusts upon the death of one of the two trustors: (1) Trust A (the Survivor’s Trust), (2) Trust B (the Decedent’s Tax Credit Trust), and (3) Trust C (the Marital Trust). The subtrusts were to be funded with the assets of the living trust upon the death of either George or Elizabeth. Allocation of assets to the subtrusts could be made on a “non pro rata” basis so long as the subtrusts had equal value.
The Decedent’s Tax Credit Trust was never funded, for reasons that are not pertinent to this appeal.
As noted, Louis and John were the remainder or residuary beneficiaries of the Marital Trust, thereby entitling them to receive the residue of that trust in equal shares upon the death of both of their parents. Although that was originally the case with respect to the Survivor’s Trust as well, in a 1994 amendment to the living trust, John was named as the sole remainder beneficiary of the Survivor’s Trust. When George died in 1990, Elizabeth, as the surviving trustee, was required to allocate the living trust assets into the Marital and Survivor’s Trusts, and she also became the lifetime income beneficiary of both the Marital and Survivor’s Trusts. At all relevant times, John and Elizabeth were the trustees of the Marital Trust and Elizabeth was the sole trustee of the Survivor’s Trust.
The 1995 Lawsuit and the 1996 Judgment
In 1995, Louis filed a prior lawsuit against Elizabeth and John (individually and as trustees of the living trust) seeking the dissolution of three family partnerships, the partition of eight ranches, and the removal of Elizabeth as trustee (the 1995 lawsuit). On April 29, 1996, after a lengthy trial before Judge Mayhew, the trial court issued a statement of intended decision providing for the dissolution of the three family partnerships (the intended decision). Although the requested relief of dissolution was granted, the trial court observed that Louis’s actions reflected “great immaturity and an essential lack of business and economic judgment,” and there was “no question in the court’s mind that the evidence establishes that [Louis’s] conduct was most responsible for the breakup of these three family partnerships.” The trial court also found, due to the apparent acrimony and contention between Louis and other family members, that it was “obvious that [Louis] … will be required to move from the [H]ome [R]anch.” Judgment in the 1995 lawsuit was entered on August 6, 1996 (the 1996 judgment).
To facilitate the requested partition of real properties, the 1996 judgment specifically determined: (1) the monetary value of each of the ranch properties in the trust, and (2) the percentage ownership interests of the living trust, Louis and John, respectively, regarding each of the ranch properties. The 1996 judgment acknowledged that the parties stipulated to exchange certain properties in kind for purposes of accomplishing the partition.
The 1996 judgment determined the reasonable monetary values of the family ranches as follows:
1.
The Home Ranch
$5,100,000
2.
The Harvey Ranch
600,000
3.
The Oakdale-Waterford Ranch
1,840,642
4.
The Bentley Ranch
3,360,000
5.
The Warnerville Ranch
1,660,000
6.
The Willms Ranch
1,440,000
7.
The Threffal Ranch
1,800,000
8.
The Watson Ranch (with Lot 71) (Lot 72 stipulatedto belong to John)
530,000
The 1996 judgment also determined or confirmed the percentage ownership interests of the living trust, Louis and John at that time as follows:
Real Property
Ownership Interests (in percentage)
1.
The Home Ranch
Louis Brichetto
46.875
John Brichetto
46.875
Ann Elizabeth Brichetto Goslee
6.250
2.
The Harvey Ranch (debt $435,000)
Louis Brichetto
50.00
John Brichetto
50.00
3.
The Oakdale-Waterford Ranch (debt $225,000)
Louis Brichetto
13.469
John Brichetto
13.469
The Living Trust
73.062
4.
The Bentley Ranch (debt $268,695)
Louis Brichetto
13.469
John Brichetto
13.469
The Living Trust
73.062
5.
The Warnerville Ranch (hill/pasture)
Louis Brichetto
6.735
John Brichetto
6.735
The Living Trust
86.530
The Warnerville Ranch (cultivated)
Louis Brichetto
26.985
John Brichetto
26.985
The Living Trust
46.030
6.
The Willms Ranch
Louis Brichetto
13.469
John Brichetto
13.469
The Living Trust
73.062
7.
The Threffal Ranch (320 acres)
Louis Brichetto
28.469
John Brichetto
28.469
The Living Trust
43.062
The Threffal Ranch (balance)
Louis Brichetto
13.469
John Brichetto
13.469
The Living Trust
73.062
8.
The Watson Ranch
Louis Brichetto
50.00
John Brichetto
50.00
To effectuate the partition as determined by the trial court, the 1996 judgment further ordered the exchange of specified real property interests, including the transfer or assumption of debts related thereto, to be completed on or before September 1, 1996, or as soon thereafter as was practicable, through an escrow established by the parties at First American Title Company. Pursuant to the exchanges specified in the 1996 judgment, Louis would receive outright ownership of three ranches: the Warnerville Ranch, the Oakdale-Waterford Ranch (eastside portion) and the Threffal Ranch. The living trust and John would receive Louis’s fractional interest in six other ranches: the Oakdale-Waterford Ranch (westside portion), the Bentley Ranch, the Willms Ranch, the Home Ranch, the Harvey Ranch and the Watson Ranch.
Allocation and Exchange of Real Property Assets
Elizabeth, John, and their accountant, Michael Baudler, began to work on the exchange of assets indicated by the trial court, as well as on the allocation of assets required under the living trust, sometime after the intended decision was issued on April 29, 1996. They relied on the valuation of assets as set forth in the intended decision and later embodied in the 1996 judgment. Elizabeth and John testified that the terms of the exchange and allocation were determined, and were no longer potential but actual, in August or September of 1996. Under said exchange and allocation, Louis and John would each receive a distribution of property and the balance of assets would remain in the living trust to be divided between the Marital Trust and the Survivor’s Trust. This allocation of assets was memorialized in an allocation chart that, according to Elizabeth, John and Mr. Baudler, was completed in late August or early September of 1996, within approximately one month after the 1996 judgment. Mr. Baudler confirmed there were two versions of the allocation chart that were generated during that time frame: an earlier version that did not show the precise allocation between the two subtrusts and a later one that did. The version of the allocation chart that included the breakdown of assets between the Marital and Survivor’s Trusts was entitled, “BRICHETTO FAMILY PROPOSED ALLOCATION OF LAND BASED ON COURT DETERMINED VALUES,” and Mr. Baudler believed it was prepared in September of 1996. This latter allocation chart was subsequently referenced by Elizabeth in a document called the allocation statement.
On August 28, 1996, a letter of instruction was sent by Henry Cirillo, attorney for Elizabeth and John, to Doris Giomi, an escrow officer at First American Title Company, explaining how grant deeds should be prepared to implement the allocation and exchange of real property. A copy of the letter was sent to Louis’s attorney, James Sadler, and Louis saw a copy of the letter at that time.
On August 28, 1996, a separate letter was also sent by Mr. Cirillo to Mr. Sadler, further explaining the allocation and also providing an allocation chart. In prior deposition testimony, Louis admitted seeing this second letter as well. Among other things, the letter to Mr. Sadler explained as follows: “As the chart makes clear, the allocation of the remaining assets between the Trust and John is intended to make sure that the overall equity interest of the brothers in the ranches remains equal after the Judgment, as it was before. Since the Judgment provided Louis with $4.158 million in land and debt, John ends up with an equivalent amount. The balance is allocated to the Trust.”
The allocation chart attached to the August 28, 1996 letter to Mr. Sadler was the version thereof that did not specify how the trust assets would be allocated between the Marital Trust and the Survivor’s Trust. The attached chart did, however, provide considerable detail in regard to the proposed allocation between Louis, John and the living trust, and, among other things, it clearly disclosed that John would receive a specified portion of the Home Ranch—i.e., $3,660,507 of the ranch’s total value of $5,100,000 or 71.7746 percent thereof. Louis’s testimony indicated that he understood the proposed allocation, including that John would receive approximately 71 percent ownership of the Home Ranch.
Mr. Sadler responded to Mr. Cirillo’s letter of August 28, 1996 by a letter dated September 16, 1996. Mr. Sadler’s letter made no objections to the proposed allocation, but warned generally against any “arbitrary division and distribution” of assets between Elizabeth and John and cautioned that Elizabeth and John had “fiduciary obligations” that must be followed.
On November 18, 1996, Mr. Cirillo sent a second letter of instruction to Ms. Giomi at First American Title Company advising her of how the living trust properties would be allocated between the Marital Trust and the Survivor’s Trust. A copy of this letter was apparently not sent to Louis or to Mr. Sadler. The instructions given to Ms. Giomi in the November 18, 1996 letter were consistent with the prior letter of instruction sent to her, and essentially followed the allocation chart that showed the allocation between Louis, John, the Marital Trust and the Survivor’s Trust. Deeds were recorded beginning in early 1997. During this time period, Louis spent a considerable amount of time at the title company. He testified that “deeds were flying like airplanes,” and he wanted to review all the documents to “make sure [he] was getting [his] proper distribution.”
The Specifics of the Real Property Allocations/Exchanges
Real Property Allocated to Louis. In 1996, in connection with his partition claims in the 1995 action, Louis submitted to the trial court several proposals in which he listed certain ranch properties that he desired to own outright. In his first proposal, Louis sought to obtain the following properties: (1) the Warnerville Ranch (also known as the Campbell Ranch), (2) the Oakdale-Waterford Ranch (eastside portion), and (3) the Threffal Ranch. In the 1996 judgment, the trial court ordered that these same three ranch properties would go to Louis. Moreover, Louis actually received these three ranch properties outright in accordance with the allocation made by Elizabeth and John in August or September of 1996, the letters of August 28, 1996 and the instructions to the title company. The total value of said ranch properties obtained by Louis, minus debt, was $4,158,000.
Real Property Allocated to John. As determined by Elizabeth and John in August or September of 1996, John’s allocation consisted of the following ranch properties: (1) the Harvey Ranch, (2) the Watson Ranch, and (3) an undivided 71.7746 percent interest in the Home Ranch. As part of the allocation, John was required to assume the indebtedness secured by the Harvey Ranch and the Watson Ranch. The total value of the ranch properties received by John, minus debt, was $4,158,000, the exact amount received by Louis.
Real Property in Living Trust Allocated to the Survivor’s Trust and the Marital Trust. The living trust received or retained the balance of the assets and debt, including the following ranch properties: (1) the Oakdale-Waterford Ranch (westside portion), (2) the Bentley Ranch, (3) the Willms Ranch, and (4) an undivided 21.9754 percent interest in the Home Ranch. The living trust assumed the indebtedness secured by the Bentley Ranch. The total value of the real property assets in the living trust, minus debt, was $6,569,690.
A remaining task was to complete, through appropriate conveyance deeds, the allocation between the two subtrusts. In the November 18, 1996 letter sent by Mr. Cirillo to First American Title Company, directions were given to Ms. Giomi on how the real property was to be allocated between the Survivor’s Trust and the Marital Trust. According to that letter, Ms. Giomi, as title officer, was to implement the prior instructions set forth in the letter of August 28, 1996, including the several exchanges of real property that were required by the 1996 judgment and certain additional exchanges of real property to be made between Elizabeth (as trustee) and John. In addition thereto, the real property in the living trust was at that time to be allocated between the Marital and Survivor’s Trusts, and Ms. Giomi was specifically instructed on how to accomplish that allocation. The Survivor’s Trust received the following real properties: (1) the Oakdale-Waterford Ranch (westside portion), (2) an undivided 57.5939 percent interest in the Bentley Ranch, and (3) an undivided 13.7401 percent interest in the Home Ranch. The Survivor’s Trust also assumed the indebtedness secured by the Bentley Ranch. The Marital Trust received the following real properties: (1) an undivided 42.4061 percent interest in the Bentley Ranch, (2) the Willms Ranch, and (3) two parcels known as the Watson Lots.
Reasons Offered for Allocation and Distribution. According to the testimony of Elizabeth, one of the most significant reasons that the real properties were allocated and distributed in the particular way they were was a desire to avoid future litigation. Her thought was that it was best to avoid joint ownership of real property between Louis and other family members, to the extent possible, because of Louis’s pattern of acrimonious and contentious behavior toward other family members. Elizabeth testified at length about Louis’s past conduct of this sort to better explain why she sought to structure the allocations and distributions to avoid future litigation. Additionally, she testified that fairness between Louis and John required that John should receive some of the real properties outright, just as Louis did as a result of the 1996 judgment. She stated that it was her goal to be fair and equitable such that there would be equal value to the assets received outright by Louis and John. As to the two subtrusts, in accordance with the terms of the living trust, the objective was that they be balanced or equal in asset value, with the understanding that the allocation of assets could permissibly be made (and in fact were made) on a non-pro rata basis.
Other Transactions That Were Subjects of Dispute
The Farm Equipment. The 1996 judgment provided for a division between Louis, John and the living trust of numerous items of farm equipment that had been acquired over the years by the family partnerships. Specifically, the 1996 judgment set forth the following process for dividing the farm equipment: “The ownership and value of the farm equipment for purposes of exchange is as specifically set forth in the appraisal of the Mulrooney Auction Company … and shall be exchanged and divided pursuant to the oral stipulation of the parties. In the event[] a party selects equipment having greater value [than] his or her interest in the partnership or selects property having a total value which is greater than another partner having the same partnership interest, the same shall be equalized by the party receiving the greater value paying the difference in cash.” This process was followed with Louis and John each making personal selections of farm equipment. Louis received farm equipment that was valued at $136,074. The remainder of the farm equipment, including John’s interest therein which he conveyed to the living trust in the overall exchange of assets, was specifically allocated to the Marital Trust. Elizabeth was the one who made the decision to allocate the farm equipment to the Marital Trust. The allocation chart used by Elizabeth and John in the allocation of assets to the subtrusts showed a credit to the Marital Trust in the amount of $200,000 for the farm equipment, but the value actually obtained by the Marital Trust for the equipment was $231,055, according to the figures used in the Mulrooney appraisal (as adjusted to correct for minor addition errors).
Foreclosure Sale of Cattle. In 1995, the Central Valley Production Credit Association (PCA) foreclosed on the assets of the L.F. Brichetto Company partnership, which assets consisted of cattle. At the time of the foreclosure, the L.F. Brichetto Company was apparently owned as follows: 11.54 percent by Louis, 11.54 percent by John, and 76.92 percent by the living trust. According to John’s testimony, the foreclosure occurred because Louis refused to sign the L.F. Brichetto Company’s annual loan documents with PCA and because Louis improperly withheld money from the sale of cattle from PCA in breach of the agreement with PCA.
At the foreclosure sale, Elizabeth and John individually purchased the cattle out of foreclosure for the price of $1,856,975. On April 12, 1995, Louis received a check in the amount of $97,125, which represented his 11.54 percent interest in the $841,642 foreclosure sale surplus. Elizabeth retained the living trust’s 76.92 percent interest in the amount of $647,392 as income beneficiary of the living trust.
The Bentley Ranch Lease. The Bentley Ranch is owned in part by both the Marital Trust and the Survivor’s Trust. On March 25, 1999, Elizabeth and John, as trustees, entered into a lease whereby the Bentley Ranch would be leased by Hunt-Wesson, Inc., now ConAgra Foods, Inc. (ConAgra), for the purpose of receiving processing water (considered wastewater) from ConAgra’s nearby food processing plant. The lease by ConAgra of the Bentley Ranch produces income in the amount of $127,050 to the living trust each year. Additionally, ConAgra pays John $60,000 annually for property management services concerning the water discharge.
The September 2000 Accounting
Between 1997 and 1999, Louis made a number of written requests to Elizabeth and John for a comprehensive accounting of all trust assets by a “stamped C.P.A.” In September of 2000, a detailed accounting of the Marital Trust for the years 1997, 1998 and 1999 was delivered by James Lewis, attorney for Elizabeth and John, to Mr. Sadler. The accounting included a number of documents attached and indexed as exhibits in a large binder. Included among the exhibits to the accounting was the version of the allocation chart that specified the allocation of assets between the Marital Trust and the Survivor’s Trust. Said allocation chart was attached to a formal document dated September 7, 2000 and entitled “ALLOCATION STATEMENT,” in which Elizabeth formally confirmed the allocation of assets as set forth in the allocation chart, noting that said allocation had been “effectuated over time by various deeds and other transfers.…” Louis claimed this was the first time he saw any documentation that had specific information concerning the allocation of assets between the two subtrusts.
This document, including the attached allocation chart, is sometimes referred to herein as the allocation statement.
The Present Lawsuit and the Judgment of the Trial Court Thereon
On December 9, 2002, Louis commenced the present action by filing his petition to (1) settle accounts and to pass upon the acts of trustees, (2) compel an account and report, (3) remove John as trustee, and (4) compel redress for breach of trust. The petition stated in vague terms that since the time of the 1996 judgment, Elizabeth and John have failed to adequately account for their actions and have breached their fiduciary duties with regard to the allocation, sale and exchange of properties in the living trust. The primary relief sought was that Elizabeth and John be compelled to comply with their fiduciary duties and to remedy any breaches thereof. The case proceeded to trial on November 15, 2006 through November 17, 2006, and December 4, 2006, in the Stanislaus County Superior Court before Judge Kraetzer, who presided without a jury.
Although Louis’s petition failed to identify any specific wrongdoing, it appears the trial court permitted Louis to present his particular claims by means of trial briefs. After the conclusion of the trial, the trial court instructed each side to file posttrial briefs discussing the merits of Louis’s claims. Elizabeth and John filed a posttrial brief on January 26, 2007. Louis filed his posttrial brief that same day. On February 4, 2007, the parties filed simultaneous posttrial reply briefs and the matter was then submitted for decision.
On February 13, 2007, the trial court issued its ruling denying all relief. Louis requested a statement of decision, and the trial court’s final statement of decision was issued on May 24, 2007. A judgment was entered that same day. The trial court determined, based on the evidence presented at trial, that Louis’s claims seeking reallocation of assets between the Marital and Survivor’s Trusts were barred by the statute of limitations, and that Louis’s claims for relief based on alleged breaches of trustees’ duties were without merit. Louis then filed this appeal from the judgment.
DISCUSSION
I. Standard of Review
Where an appeal challenges the trial court’s resolution of factual issues, we apply the substantial evidence rule in which “‘the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below.” (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100; see Penny v. Wilson (2004) 123 Cal.App.4th 596, 603 [substantial evidence test applied to trial court’s finding whether trustee breached duties].) In assessing whether any substantial evidence exists, we view the record in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) If the historical facts are undisputed but different inferences may be drawn from the evidence, we defer to the trial court’s resolution of conflicting inferences. (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 301.)
Where an appeal involves a mixed question of law and fact, “[w]e review the trial court's resolution of disputed historical fact under the deferential substantial evidence rule, exercise our independent judgment of the law to be applied, and review the application of the law to the facts as a question of law when legal concepts and their underlying values must be considered or when the issue has practical significance beyond the confines of the case at hand. When the application of the law to the facts is based on experience with human affairs, the question is reviewed as a question of fact.” (In re Valerie A. (2007) 152 Cal.App.4th 987, 1004, citing Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801.)
The primary issues before us are resolved by a consideration of the trial court’s findings on the peculiar facts and circumstances of this case. These findings were founded on evidence produced at trial and on the trial court’s experience with human affairs, rather than on the nature and scope of the legal principles involved or of the values that animate such legal principles. We therefore conclude that the substantial evidence rule is the appropriate standard of review. However, we use our independent judgment in identifying the correct legal standard to be applied.
Louis argues that a de novo standard applies. To the extent there are issues before us in which the underlying facts are entirely undisputed, and the only issue to be decided is the legal significance of those facts, we agree that such issues are reviewed independently. (Cohn v. Corinthian Colleges, Inc. (2008) 169 Cal.App.4th 523, 527.) However, it is difficult to detect any such undisputed matters in the present setting. In any event, we note that the issue of the appropriate standard of review is largely academic in this case because we would reach the same result regardless of whether a deferential or de novo standard of review were used.
II. The Trial Court’s Finding that Louis’s Reallocation Claims Were Barred By the Statute of Limitations Was Supported by Substantial Evidence
In addressing Louis’s discrete claims that sought the reallocation of assets as between Louis, John, the Marital Trust and the Survivor’s Trust based on alleged breaches of the trustees’ fiduciary duties in how the assets were allocated, the trial court found that all such claims were barred by the applicable statute of limitations. As we now discuss, the record supports the trial court’s conclusion.
The statute of limitation for claims by a beneficiary for breach of trust is set forth in Probate Code section 16460, which states in relevant part as follows:
Unless otherwise indicated, all further statutory references are to the Probate Code.
“(a) Unless a claim is previously barred by adjudication, consent, limitation, or otherwise:
“(1) If a beneficiary has received an interim or final account in writing, or other written report, that adequately discloses the existence of a claim against the trustee for breach of trust, the claim is barred as to that beneficiary unless a proceeding to assert the claim is commenced within three years after receipt of the account or report. An account or report adequately discloses existence of a claim if it provides sufficient information so that the beneficiary knows of the claim or reasonably should have inquired into the existence of the claim.
“(2) If an interim or final account in writing or other written report does not adequately disclose the existence of a claim against the trustee for breach of trust or if a beneficiary does not receive any written account or report, the claim is barred as to that beneficiary unless a proceeding to assert the claim is commenced within three years after the beneficiary discovered, or reasonably should have discovered, the subject of the claim.”
As the language of subdivision (a)(2) of the above provision makes clear, the three-year limitations period applies “‘both where an insufficient account or report is given the beneficiary as well as where the beneficiary has not received any written account or report.’” (Noggle v. Bank of America (1999) 70 Cal.App.4th 853, 859 [quoting Law Revision Commission Comment to the 1996 amendment of section 16460].)
In its statement of decision, the trial court specifically held as follows regarding the statute of limitations:
“[T]he court finds that the allocations to [Louis], [John], the Marital [T]rust, and the Survivor’s [T]rust were completed in 1996. There is no doubt in the court’s mind that [Louis] knew full well exactly what the allocations were between [John] and between the two sub-trusts in late 1996 and yet failed to file the current petition until 6 years later, in late 2002. This relief is barred by the applicable statute of limitations.”
The trial court’s ruling was supported by substantial evidence presented at trial. Elizabeth, John and their accountant, Mr. Baudler, all testified that the final allocation—including the allocation of assets between the two subtrusts—was completed within one month after the August 6, 1996 judgment in the prior action. On August 28, 1996, a letter of instruction was sent by Mr. Cirillo to Ms. Giomi of First American Title Company, with a copy sent to Mr. Sadler, explaining to Ms. Giomi how the deeds should be prepared. This letter instructed Ms. Giomi how property should be deeded between Louis, John and the living trust. A second letter was sent on August 28, 1996 to Mr. Sadler further explaining the allocation and including an allocation chart. The allocation chart specified the allocations between Louis, John and the living trust. Louis admitted seeing both letters. On November 18, 1996, Mr. Cirillo sent an additional letter to Ms. Giomi, which instructed her how to prepare deeds to allocate the property between Louis, John, the Marital Trust and the Survivor’s Trust.
Louis’s prior deposition testimony was introduced at trial and reflected that he understood in 1996 what the proposed allocation was, including the fact that John would receive approximately 71 percent of the Home Ranch. Beginning in February of 1997, deeds implementing the allocation were being finalized and publically recorded. During this same time period, Louis spent a considerable amount of time reviewing documents at First American Title Company. Additionally, Louis admitted that he knew in 1998 that the Willms Ranch was in the Marital Trust.
The above evidence was more than sufficient to allow a reasonable trier of fact to conclude that Louis knew or should have known of the terms of the allocation, including the allocation of assets between the two subtrusts, by late 1996 or early 1997. In the terminology of the applicable statute of limitations, the evidence gave rise to a reasonable inference that Louis “discovered, or reasonably should have discovered” (§ 16460, subd. (a)(2), italics added) the subject of his claims relating to the allocation of assets by late 1996 or early 1997. Yet Louis waited until December 9, 2002 to file his petition, which was clearly more than the three-year period set forth in section 16460.
There is still a more basic reason for upholding the trial court’s findings regarding the statute of limitations defense. Namely, Louis failed to challenge the trial court’s ruling on the statute of limitations. Nothing in his appeal specifically addresses that issue. It is fundamental to the appellate process that a judgment is presumed correct and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Issues that are not expressly raised and supported in the appellant’s opening brief are deemed waived or abandoned. (Paulus v. Bob Lynch Ford, Inc. (2007) 139 Cal.App.4th 659, 685.) “‘“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived.”’” (Ibid., quoting Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 316, fn. 7.) By his failure to address this issue on appeal, Louis has abandoned any challenge to the trial court’s ruling on the defense of statute of limitations. Therefore, the ruling stands.
III. The Trial Court’s Finding That Elizabeth and John Properly Made Non-Pro Rata Allocations Was Supported By Substantial Evidence
A. The Trial Court Did Not Err in Concluding That Non-Pro Rata Allocations Were Permissible and it Applied Correct Legal Principles
In its statement of decision, the trial court stated that even if the statute of limitations did not completely bar Louis’s reallocation claims, all such relief would be denied on the merits. The trial court reasoned that the non-pro rata allocation of assets between Louis, John, the Marital Trust and the Survivor’s Trust was entirely proper and appropriate under the circumstances. Non-pro rata allocation was expressly permitted in the living trust instrument and under applicable trust law. Further, the trial court also found it was entirely reasonable for Elizabeth and John to structure the non-pro rata allocation so as to avoid co-ownership of property with Louis, including as to the Home Ranch where other family members were personally residing, given Louis’s history of extremely contentious and acrimonious behavior toward other family members. It was proper for Elizabeth and John to consider such need to avoid the potential for future litigation with Louis, as long as the properties received by Louis and John outright had equal value and as long as the two subtrusts received equal value—which was precisely what occurred. As we now proceed to explain, we agree with the trial court’s analysis.
Specifically, the trial court stated as follows:
“[E]ven if the claims were not barred by the statute of limitations, the court would deny the relief sought on the merits. The trust instrument and the applicable law allow for non-pro-rata allocations of the assets as long as the values are equal. The court ruled during trial and reaffirms its ruling that [Elizabeth and John] were bound to use the values set by Judge Mayhew [in the 1996 judgment]. The court finds that Judge Mayhew intended that his values be used in … all the allocations made by [Elizabeth and John], and that [Elizabeth and John] were reasonable in doing so under the circumstances then prevailing. And using these values the shares to the two sub-trusts were equal. The fact that the Home Ranch may have been more valuable then or now because of its proximity to Oakdale is irrelevant. For all we know, that factor may have been taken into account when the $5,100,000 value was established. The value adjudicated was the value to be used and it was used. Similarly, the fact that a large portion of the Home Ranch went to [John] and the balance in the Survivor’s trust is again irrelevant both because non-pro-rata allocation was proper and because it is most understandable that [Elizabeth and John] would seek to avoid having [Louis] come into ownership of any portion of the Home Ranch given the fact of his removal from residency on the property and the obvious desire to avoid as much co-ownership as possible, then and in the future. [Elizabeth’s and John’s] desire to avoid co-ownership with [Louis] was reasonable given [Louis’s] history of hostile, adverse, and disrespectful conduct and their desire to avoid future litigation. [Louis] must have felt the same way given his desire to have complete ownership of the ranches he chose to acquire under the judgment. Additionally, [Louis] received outright ownership of the properties he received pursuant to Judge Mayhew’s judgment. Some of these properties had been owned by the Brichetto family for a century. The trust had owned a majority interest in each of those properties, and [John] had owned an interest in each of the properties as well. [Elizabeth and John] rightfully determined [John] was not required to keep only fractional interests in some of the properties he received, just as [Louis] was not required to do so.”
The legal principles relied on and applied by the trial court in approving the non-pro rata allocations were correct. First, the terms of the trust instrument govern its administration. (§ 16000.) Here, paragraph 2.6 of the living trust expressly authorized the trustees to make non-pro rata allocations, as long as such allocations were on the basis of equal value. Such a provision was in full accordance with trust law in this state. Section 16246 provides as follows: “The trustee has the power to effect distribution of property and money in divided or undivided interests and to adjust resulting differences in valuation. A distribution in kind may be made pro rata or non pro rata, and may be made pursuant to any written agreement providing for a non pro rata division of the aggregate value of the community property assets or quasi-community property assets, or both.”
Second, a trustee is required to administer a trust with “reasonable care, skill, and caution under the circumstances then prevailing that a prudent person acting in a like capacity would use in the conduct of an enterprise of like character and with like aims to accomplish the purposes of the trust as determined from the trust instrument.” (§ 16040, italics added.) The evidence at trial established that a very important circumstance prevailing at the time Elizabeth and John made the allocation decisions was the reality of Louis’s extremely contentious and acrimonious behavior toward other family members, and hence there was a reasonable need to try to minimize future conflict and litigation by means of avoiding joint ownership of real properties between Louis and other family members. Elizabeth testified the allocation goal was to be as equitable and fair and possible, while also trying to maintain family harmony and avoid future litigation. Trust expert, John Hartog, testified that it is within the standard of care for a trustee to take into consideration potential future litigation in how he or she allocates assets, and that where there has been a history of family acrimony it would be reasonable for a trustee to avoid joint ownership. We agree that it was proper for Elizabeth and John to consider such circumstances and that it was not a breach of their duties as trustees to allocate real property assets on a non-pro rata (but equal in value) basis that was designed in part to minimize joint ownership with Louis so as to avoid future litigation. (§ 16040.)
Third, the trial court found it was reasonable and proper for Elizabeth and John to base their allocation decisions on the values that were established in the 1996 judgment. There was extensive testimony at trial to show that Elizabeth and John made their final allocations shortly after the 1996 judgment. It was certainly reasonable and appropriate under the circumstances for Elizabeth and John to base their allocation decisions on the values that were expressly determined by the court in the 1996 judgment. Considering that the parties had just been through a lengthy litigation, it would be entirely unwarranted to expect the trustees to reappraise the real properties when Judge Mayhew resolved the issue of property values in the 1996 judgment. On appeal, Louis has failed to present any cogent argument for claiming any error or breach of duty on this point.
Fourth, “[i]f a trust has two or more beneficiaries, the trustee has a duty to deal impartially with them ….” (§ 16003.) Applying this principle, the trial court correctly held that since Louis had received ownership in three properties outright, John was not required to keep only fractional interests in the other real properties. That is, the goal of equalizing the outright distributions of real property was in accord with the principle of impartiality. Hence, it was not improper for John to receive some of the properties outright, just as Louis did.
We conclude the trial court applied the correct legal principles, supported by substantial evidence, when it found that Elizabeth and John were entitled to allocate assets on a non-pro rata, but equal value, basis, and that Elizabeth and John did not violate their duties as trustees simply because they (1) structured the allocation based in part on the need to avoid joint ownership with Louis to avoid future litigation, (2) used property values established in the 1996 judgment, and (3) allowed both John and Louis to receive individual ownership of real property outright having equivalent values.
Having reviewed the legal principles that guided the trial court’s decision and noting our concurrence with the trial court’s application of those principles under the peculiar facts and circumstances of this case, we now turn to the particular non-pro rata exchanges or allocations that Louis takes special issue with in this appeal.
B. The Trial Court’s Conclusion That There Were No Improper Exchanges in Connection with the Home Ranch Was Supported by Substantial Evidence
At the crux of Louis’s dispute with Elizabeth and John is the disposition of the Home Ranch. The Home Ranch apparently had a greater likelihood of appreciation due to its proximity to the City of Oakdale. Louis felt aggrieved that John received most of the Home Ranch and claimed in the trial court that Elizabeth and John breached their fiduciary duties owed to him. More specifically, Louis argued that Elizabeth and John breached their duties as trustees when, in making the real property allocations, they allowed John to “exchange” other assets in order to gain a larger percentage of ownership in the Home Ranch. Louis characterized the alleged exchanges as improper on the ground that they constituted a violation of trustees’ duties to avoid self-dealing, conflicts of interest and partiality with respect to the beneficiaries’ interests. (§§ 16002, 16003, 16004.)
To understand this matter in context, we briefly recapitulate some of the facts concerning the Home Ranch. As noted in our summary of background facts, the 1996 judgment confirmed that the Home Ranch was owned by Louis (46.875 percent), John (46.875 percent) and Ann Elizabeth Brichetto Goslee (6.250 percent). According to the testimony of Elizabeth and John, once the exchanges and allocations were completed, John ended up with 71.7746 percent ownership in the Home Ranch (or $3,660,507 of the Home Ranch’s total value of $5,100,000), which was precisely as disclosed to Louis in the values that were set forth in the initial allocation chart attached to the August 28, 1996 letter that Louis saw at that time. The balance of the Home Ranch ownership, aside from the interest of Ann Elizabeth Brichetto Goslee, was placed in the Survivor’s Trust.
We note that the November 18, 1996 letter to the title company included reference to a further exchange between Elizabeth and John that would result in John receiving an 80.0099 percent interest in the Home Ranch. Whether that ever occurred or, if so, how such fact impacted the parties’ positions in the case, was not presented in the briefing. To the extent this figure differs from the percentage and value set forth in the August 28, 1996 allocation chart and the allocation statement, the trial court presumably resolved the conflict by holding that John actually received 71.7746 percent. There was substantial evidence to support such a finding.
As part of the overall allocation and exchange process by which (1) Louis and John received certain properties outright, and (2) the balance of the properties were segregated into the two subtrusts, both Louis and John (as well as the living trust) had to surrender some of their fractional personal interests in certain properties in order to accomplish the partitioning and allocation objectives. However, Louis apparently objected that John exchanged other personal assets such as farm equipment and the Watson lots—going beyond what was required by the 1996 judgment—in order to receive a greater share in the Home Ranch.
The trial court found that Louis’s claim concerning the Home Ranch was not borne out by the facts. In its statement of decision, the trial court held: “[Louis] has … repeatedly asserted that [John] has exchanged his assets for a greater share of the Home Ranch. The court does not view it as such. Instead, if [John’s] interest in the equipment and his own Watson lot had not been transferred into the Marital trust, then all that would have happened is there would have been more of the Bentley ranch in the Marital trust and less of it in the Survivor’s trust to effect the equalization of the two sub-trusts.” (Italics added.) The trial court explained further that because certain assets such as equipment went into the Marital Trust, “the Survivor’s trust received a larger share in the Bentley Ranch…. [However,] the dollar amount of the interest of [John] in the Home Ranch” remained essentially unchanged from the time the allocation was first made known in August of 1996.
There was substantial evidence to support the trial court’s interpretation of how the allocation occurred. Although properties received by the living trust from John would necessarily become part of the overall equation, both Elizabeth and John testified that the means they selected and used for balancing the two subtrusts was adjustment of the percentage ownership of the Bentley Ranch within each subtrust, not by an exchange of John’s personal property for trust property. The trial court found this explanation both credible and significant, which meant that the trial court had a factual basis for concluding that John would have received the same percentage of the Home Ranch regardless of the disputed exchanges of other properties. John’s testimony added the perspective that he merely received a portion of what had been Louis’s ownership interest in the Home Ranch, since the Home Ranch was never historically a trust asset. Moreover, as found by the trial court based on the previously established values, the property distributions to John and Louis were equal in value and the allocation of assets between the Marital Trust and the Survivor’s Trust were likewise equal in value. Although Louis relied heavily on this improper “exchange” theory, the trial court was not obliged to adopt it because substantial evidence allowed the trial court to reach a different interpretation of the facts. In short, there was substantial evidence to support the trial court’s judgment that no breach of trustees’ duties occurred with respect to the Home Ranch disposition.
Louis argues the trial court erred as a matter of law because allegedly the mere fact that John contributed additional properties that may have facilitated or allowed his receipt of a larger share of the Home Ranch necessarily constituted a form of self-dealing or a breach of loyalty or conflict of interest, in violation of the duties of trustees under California trust law as set forth in sections 16002 (duty of loyalty), 16003 (duty of impartiality) and 16004 (duty to avoid conflicts of interest). We disagree for two basic reasons. First, the trial court found—and its finding was supported by substantial evidence—that the method actually employed by Elizabeth and John for balancing the subtrusts was adjustment of percentages in the Bentley Ranch, and therefore John would have received the same percentage in the Home Ranch even without the disputed exchanges. Second, the trustees were entitled to make non-pro rata but equal-in-value allocations of the several properties in accordance with their duties to administer the trust under the terms of the trust instrument, as permitted by law. (§§ 16000, 16040, 16246.) In carrying out this permissible objective and in considering the significant need to avoid joint ownership with Louis to avoid conflict and future litigation (§ 16040 [reasonable care exercised “under the circumstances then prevailing”]), it was entirely reasonable for the trustees to allocate the available nontrust portion of the Home Ranch property to John.
Finally, the trustees’ decisions were properly found to be reasonable based on court-determined values set forth in the 1996 judgment; therefore, it was (and is) irrelevant that the Home Ranch may have had a potential for future appreciation. As the trial court noted, that fact would presumably have been factored into the original determination of its $5,100,000 valuation in the 1996 judgment. Further, a trustee’s reasonable care is properly exercised based on “circumstances then prevailing” (§ 16040, subd. (a); see also § 16051), which in this case included the values that were determined in the 1996 judgment.
Prior to the time of the 1996 judgment, Louis’s appraiser had already informed Louis of the development potential of the Home Ranch property.
C. The Trial Court’s Conclusion That Elizabeth and John Properly Allocated the Watson Lots and the Farm Equipment Was Supported by Substantial Evidence
Aside from the claim by Louis that John improperly exchanged personal assets for trust property, Louis also contended that he was harmed by the allocation of the Watson Lots and the farm equipment into the Marital Trust. The alleged harm was posited as evidence that Elizabeth and John breached their fiduciary duties to Louis. After careful consideration of the evidence, the trial court concluded that Louis actually benefitted by the fact that the Watson Lots and farm equipment were allotted to the Marital Trust. We agree.
With regard to the Watson Lots, the trial court explained as follows: “[Louis] asserts that it was improper for [John] to transfer his interest in the equipment and his own Watson lot into the Marital sub-trust because it commingled personal assets with trust assets. If [John] claimed a continuing interest in these assets, [Louis] would be correct. But the evidence established that he makes no such claim. Thus, [Louis] has been benefitted, not damaged by this ‘gift’ into a trust of which he will ultimately receive one-half. [Louis] has also been benefitted by the fact that [John] was charged in the allocation for the other Watson lot even though that lot was transferred to the Marital trust.” These findings were supported by testimony and other evidence substantiating that both of the two Watson Lots—Lots 71 and 72—were transferred into the Marital Trust. At the same time, John was charged in the allocation with receiving Lot 71 (apparently as part of the Watson Ranch), even though he did not actually receive Lot 71 because it was transferred into the Marital Trust. Clearly, the net result was that Louis benefitted by the allocations regarding the Watson Lots. We conclude the trial court’s findings with respect to the Watson Lots were supported by substantial evidence.
With regard to Louis’s claim that the allocation of the farm equipment harmed him or did not comply with the 1996 judgment, the trial court’s statement of decision provided as follows:
“[Louis] misreads the earlier [1996] judgment. The farm equipment is dealt with in Section 5 of the judgment. Judge Mayhew adjudicated that the ownership and value of the equipment was as set forth in the three appraisals by Mulrooney Auction Company. The allocation, or as Judge Mayhew put it[,] the exchange and division of the equipment, was to be pursuant to the parties’ oral stipulation. That is exactly what happened. The parties did hold a private ‘auction’ and [Louis] obtained the equipment he wanted and was entitled to, plus another $15,000 worth of equipment for which he paid [Elizabeth and John]. The balance was transferred to the Marital trust. There is no allocation at issue, except as to the placement of the balance in only one of the sub-trusts, an issue dealt with above [as to non-pro rata allocation]. [¶] Additionally, [Louis] received his individual share of the equipment but was not charged for it in the allocation. The Marital trust received more equipment than it was charged for because there was a mathematical error in one of the Mulrooney Auction Company appraisals adopted by Judge Mayhew. [Louis] was not injured by the allocation of the equipment because he and the trust to which he is a remainder beneficiary actually received more than each should have received by the allocation. Moreover, the trustees have properly established a reserve for depreciation to account for the depreciation of the equipment.”
These findings of the trial court were likewise supported by substantial evidence. John’s testimony, which included references to the appraisal values, provided adequate substantiation that after the division of equipment at the private auction between the parties, the Marital Trust actually received $231,055 worth of equipment, even though only $200,000 was allocated to the Marital Trust in the allocation statement. Additionally, although Louis received $136,074 in actual equipment, that sum was not accounted for on the allocation statement at all. We conclude the trial court’s determination that Louis benefitted by the farm equipment allocation was supported by substantial evidence.
IV. The Trial Court’s Findings on Additional Accounting and Trust Property Issues Were Supported By Substantial Evidence
A. Proceeds of 1995 Foreclosure Sale of Cattle
Louis contended that the accounting provided by Elizabeth and John failed to include or allocate a valuable asset that belonged to the living trust—namely, the proceeds of the 1995 foreclosure sale of cattle that had been owned by one of the dissolved family partnerships. The trial court held there was no breach of duty owed to Louis concerning the subject proceeds because that money was properly retained in 1995 by Elizabeth—the income beneficiary—as income. On appeal, Louis argues the trial court erred since the proceeds of the foreclosure sale should have been treated as trust principal and retained as an asset in the trust.
We briefly review the factual background concerning this transaction. In 1995, PCA foreclosed on the assets of one of the family partnerships, the L.F. Brichetto Company partnership. The partnership’s assets consisted of cattle. At the time of the foreclosure, the L.F. Brichetto Company was thought to be owned as follows: 11.54 percent by Louis, 11.54 percent by John, and 76.92 percent by the living trust. According to John’s testimony, the foreclosure occurred because Louis refused to sign the L.F. Brichetto Company’s annual loan documents with PCA and because Louis improperly withheld money from the sale of cattle from PCA in breach of the agreement with PCA.
Other evidence suggested that the actual percentages of ownership were as follows: Louis 13.469 percent, John 13.469 percent, and the living trust 73.062 percent.
At the foreclosure sale, Elizabeth and John individually purchased the cattle out of foreclosure for the price of $1,856,975. On April 12, 1995, Louis received a check in the amount of $97,125, which represented his 11.54 percent interest in the $841,642 foreclosure sale surplus. Elizabeth retained the living trust’s 76.92 percent interest, in the amount of $647,392, as income beneficiary of the living trust. Louis, John, and the living trust each treated their share of the proceeds as income for tax purposes.
The $647,392 received by Elizabeth as trust income is what Louis sought to have restored to the trust and accounted as principal. In the trial court below, each side had its own expert testify regarding how the foreclosure proceeds should have been characterized. Louis’s accountant, Douglas Laugero, testified that L.F. Brichetto Company’s portion of the proceeds (the portion that went into the living trust) was a “liquidating distribution,” and that the proceeds from the sale should have been allocated to the living trust as “principal.” Michael Wagner, a licensed certified public accountant and attorney, testified as an expert for Elizabeth and John. Mr. Wagner testified that the net profits obtained from the PCA foreclosure sale of the L.F. Brichetto Company were properly accounted for as income by the trustees, in accordance with generally accepted methods of accounting for a farming business. Additionally, accountant Charles Sargent testified that in his experience in providing accounting services to dairy and beef cattle operations, the net profits obtained from the foreclosure sale by PCA of the L.F. Brichetto Company would be treated as ordinary income received from the sale of cattle and feed inventory.
On this particular question, the trial court ruled as follows: “The court will not require the addition of $647,392 from the L.F. Brichetto Co. foreclosure sale to the [trust’s] assets. [Elizabeth] is the income beneficiary of all income of both sub-trusts. Any undistributed income in the Marital trust is added to the Survivor’s trust. The court is not persuaded by [Louis’s] expert’s evidence that the money should be treated as principal and not income. Rather, the court accepts [Elizabeth’s and John’s] expert’s testimony that it should be treated as it was, namely income, on which income taxes were in fact paid. Additionally, the court finds that the money should be treated as income under the statutory law in effect at the time of the foreclosure. It was the actions of [Louis] that caused L.F. Brichetto Co.’s assets to be sold at foreclosure. As noted above, [Louis] in the earlier litigation recognized that such proceeds were to be treated as income since he paid income taxes on his share and then asked the court for an adjustment in his capital account to reflect the taxes he paid. Judge Mayhew declined to do so. It surely seems inappropriate under these circumstances for this court to hold that the trust should not have paid income taxes on its share of the proceeds, that [Elizabeth] should ‘eat’ those taxes and that she must place $647,392 into the two sub-trusts. It is far too late for [Louis] to change his position. The court also finds that the proceeds from the foreclosure sale were profit, and therefore income, because, among other things, L.F. Brichetto Co. had no net capital assets at the time of [George’s] death and there were no capital contributions made to the partnership between the date of his death and the date of the foreclosure sale.”
As the trial court correctly observed, the law in effect at the time of the foreclosure sale permitted the characterization of the proceeds as income. At that time, section 16308 provided as follows: “If a trustee uses any part of the principal in the operation of a business, including an agricultural or farming operation, of which the settlor was a sole proprietor or a partner, the net profits and losses of the business shall be computed in accordance with recognized methods of accounting for a comparable business. Net profits from a business are income.…” (Stats. 1990, ch. 79, § 14, repealed by Stats. 1999, ch. 145, §§ 4-5.) Further, we hold the trial court properly relied on the expert testimony of accountants Mr. Wagner and Mr. Sargent to the effect that treatment of the cattle sale proceeds as income was in accordance with generally accepted accounting principles at that time. Accordingly, the trial court’s ruling on this issue was supported by substantial evidence.
Louis relied on new section 16350, enacted in 1999, which provides that proceeds received in liquidation of an entity should be treated as principal.
B. The Bentley Ranch
Louis claimed the trial court erred in its ruling concerning the Bentley Ranch lease with ConAgra. The Bentley Ranch is owned in part by the Marital Trust and the Survivor’s Trust. As was mentioned earlier in this opinion, Elizabeth and John entered into a lease in 1999 with ConAgra for the purpose of receiving processing water (considered wastewater) from ConAgra’s nearby food processing plant. The lease by ConAgra of the Bentley Ranch produces income in the amount of $127,050 to the living trust each year. Additionally, ConAgra pays John $60,000 annually for property management services in connection with the water discharge.
Louis complained that Elizabeth and John used the Bentley Ranch, a trust asset, for personal gain in violation of fiduciary duties. In particular, Louis argued that the lease agreement with ConAgra regarding the Bentley Ranch was improper because the lease term might go beyond his mother’s lifetime, the lease allegedly degraded the value of the land, and John was not entitled to any compensation for his property management services in connection with the wastewater delivered to the Bentley Ranch property.
The trial court ruled that none of the matters referred to by Louis constituted a breach of the trustees’ duty of care. There was credible testimony at trial indicating that the activities on the land actually benefitted the land in significant ways and did not diminish its value, and ConAgra had even paid for improvements on the land. Further, the fact that John was being paid compensation for actual services he rendered at the property in connection with the lease was not a violation of his duties as trustee, because he was providing services that were necessary to keep the real property and its water supplies adequately managed under the circumstances. It would not have benefitted the trust if, for example, a third party contractor had to be hired to perform these same services. We conclude there was substantial evidence to support the trial court’s conclusion that the ConAgra lease was not a violation of the trustees’ duties.
V. Any Other Issues Abandoned By Failure to Meet Affirmative Burden to Establish Trial Court Error
We note that Louis’s opening brief made a number of sweeping assertions of a conclusory and confusing nature, often unsupported by sufficient argument, legal authority or supporting citations to the record. In light of such defect, we decline to reach any additional potential issues that may be lurking in the briefing but were inadequately presented. We reiterate the fundamental rule that a judgment is presumed correct and error must be affirmatively shown. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) There are consequences when an appellant fails to meet this burden. Issues that are not expressly raised and supported in the appellant’s opening brief are deemed waived or abandoned. (Paulus v. Bob Lynch Ford, Inc., supra, 139 Cal.App.4th at p. 685.) “‘“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived.”’” (Ibid., quoting Osornio v. Weingarten, supra, 124 Cal.App.4th at p. 316, fn. 7.) A point only raised in a perfunctory way, without adequate analysis and authority, is passed as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793.) When the appellate court is unable to discern a party’s specific arguments, it may deem them to be abandoned. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
DISPOSITION
The judgment of the trial court is affirmed. Costs on appeal are awarded to Elizabeth and John.
WE CONCUR: Cornell, Acting P.J., Dawson, J.