Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. PRO115618
Marchiano, P.J.
Sean and Melissa Morton in propria persona appeal from an order granting the “Petition For Instructions Interpreting The No-Contest Clause Of The Blessings Trust And Decedent’s Will” (the Petition) filed by Jerry W. Roberts and William G. Toy (collectively, petitioners), as special administrators of the estate of Maureen Kennedy Salaman and trustees of the Blessings Trust created by Salaman. The issues on appeal are whether the court erred in: (1) finding that the Mortons’ challenges to the trust and Salaman’s will violated no contest clauses in the documents; (2) refusing to grant the Mortons further discovery; and (3) failing to afford the Mortons a jury trial on the Petition. We conclude that the Mortons’ arguments on these issues lack merit and affirm the order.
I. BACKGROUND
Sean Morton is Maureen Kennedy Salaman’s son, and Melissa Morton is his wife. Salaman executed a will and a trust agreement in December 2005, which contained no contest clauses. Under these documents, the Mortons were life income beneficiaries of the trust, and were to receive a condominium at Lake Tahoe. Salaman executed a codicil to the will and a second amendment to the trust on July 26, 2006, which left her gun collection to the Mortons in the event her brother, Thomas Gillespe, failed to survive distribution, but otherwise disinherited the Mortons. Salaman died on August 17, 2006.
The Mortons contested the codicil and second trust amendment, alleging Salaman’s lack of capacity, and fraud and undue influence on the part of petitioners. The Petition sought instructions interpreting the no contest clauses and confirming that the challenges violated the clauses. The Mortons argued that the no contest clauses were unenforceable under Probate Code section 21307, subdivision (b), which provides: “A no contest clause is not enforceable against a beneficiary to the extent the beneficiary, with probable cause, contests a provision that benefits any of the following persons:... (b) A person who gave directions to the drafter of the instrument concerning dispositive or other substantive contents of the provision or who directed the drafter to include the no contest clause in the instrument, but this subdivision does not apply if the transferor affirmatively instructed the drafter to include the contents of the provision or the no contest clause.”
All further statutory references are to the Probate Code.
After multiple rounds of briefing, including submission of hundreds of pages of documentary evidence, and two hearings of arguments of counsel, the court granted the instructions petitioners sought and enforced the no contest clauses against the Mortons. The applicability of section 21307 turned on: (1) whether Roberts benefitted from the codicil or trust amendment, and (2) whether the Mortons had probable cause to believe that Roberts influenced the preparation of those documents or gave directions to Salaman’s estate planning attorney concerning their contents. The court ruled for petitioners on both points, finding that the Mortons lacked probable cause, and that Roberts received no benefit, within the meaning of the statute.
II. DISCUSSION
The term “probable cause” in section 21307 has been interpreted to mean “good cause” (Estate of Peterson (1999) 72 Cal.App.4th 431, 436), and “probable cause” is “ ‘generally considered synonymous’ ” with “reasonable cause” (Estate of Gonzalez (2002) 102 Cal.App.4th 1296, 1305 (Gonzalez)). “Probable cause” can be said to exist in this context “if the facts known at the time of filing would cause a reasonable person to believe that there is a reasonable likelihood of prevailing after an opportunity for further investigation and discovery.... The ‘reasonable likelihood’ standard requires more than a mere possibility but less than a likelihood that is ‘more probable than not.’ ” (1 Cal. Trust and Probate Litigation (Cont.Ed.Bar 2009) No-Contest Clauses and Other Obstacles to Litigation, § 5.8A, p. 97 [discussing new § 21311, which will replace § 21307 on Jan. 1, 2010]; see also Gonzalez, supra, 102 Cal.App.4th at p. 1305 [reasonable cause is “ ‘ “[d]etermined objectively, as a matter of law, on the basis of the facts known to the plaintiff when he or she filed... the action” ’ ”].)
We cannot assess the trial court’s determination that probable cause was lacking here without knowing what facts were known to the Mortons when they filed their contests of the codicil and trust amendment, that would have led them to believe that Roberts influenced or directed the preparation of those documents. The statements of facts in the Mortons’ briefs are not supported by citations to the record, and they concede that some of the facts they recite “were not raised in the lower court.” The Mortons do not acknowledge any of the evidence, including that of Mr. Morton’s strained relationship with Salaman and of events preceding the disinheritance, that would have explained why Salaman would not wish to provide for them. We decline to consider new “facts” alleged by the Mortons for the first time on appeal, cannot overlook their failure to attempt any balanced account of the evidence, or excuse their neglect to support their section 21307 argument with the necessary citations to the record, and, accordingly, deem that argument to have been waived. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
Their argument would fail in any event. The court could credit the declaration of Jonathan Wolf, petitioners’ litigation counsel, that all of the documentary evidence the Mortons submitted on the probable cause issue was produced during discovery after the contests were filed. Thus, the Mortons’ claim to have had reasonable cause, when they filed the contests, for believing that Roberts had a hand in disinheriting them rested entirely on statements in their declarations, which the trial court was not obliged to believe. Because the section 21307 issue may have been resolved on the basis of the Mortons’ lack of credibility, we have no ground to overturn the decision. (Berzon v. U.L.C. Corp. (1969) 274 Cal.App.2d 690, 696 [“the trial court is the exclusive judge of questions of credibility of witnesses”].) The trial court properly determined this issue against appellants.
The Mortons appear to believe that probable cause was established merely by the fact that Salaman’s signatures on the documents appear somewhat different from those on earlier documents she executed when she was presumably in better health. However, as a matter of law, that fact alone did not establish any good or reasonable cause to believe that Roberts had anything to do with the disinheritance.
In view of our conclusion that the court did not err in finding a lack of probable cause, we need not review its finding that section 21307 was also inapplicable because Roberts did not benefit from the codicil or trust amendment.
B. Discovery
The trial court did not abuse its discretion in denying the Mortons further discovery on the probable cause issue because all of the relevant evidence—showing what they knew when they filed the contests—was in their possession.
C. Jury Trial
The Mortons contend that they were deprived of a right to a jury trial on the applicability of section 21307. However, section 825 states that, “[e]xcept as otherwise expressly provided in this code, there is no right to a jury trial in proceedings under this code,” and the Mortons identify no Probate Code provision that supports their argument.
III. DISPOSITION
The order on the petition is affirmed.
We concur: Margulies, J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.