Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. Nos. FPR 041763 & FPR 042170
Swager, J.
This appeal comes to us following orders by the trial court which sustained the demurrers of respondents, dismissed an amended petition filed by appellant, and entered a judgment in favor of respondents. Appellant claims that the trial court erred by interpreting trust and will instruments that convey title to real property to respondents. We conclude that the trial court’s interpretation of the testamentary documents was correct, and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
We hereby grant appellant’s requests to augment the record with Exhibit AA 16a, which were unopposed by respondents.
This litigation commenced in April of 2005, with a petition filed by appellant to compel redress for breach of trust, to impress a constructive trust, and to determine the validity of a conveyance of real property located at 219 Fair Oaks Drive in Vacaville (the real property) by Arthur Varone to respondents in accordance with the terms of a trust. Appellant filed a second petition in March of 2006 to establish ownership of the real property in the estate of Lauren, his grandmother, in accordance with the terms of her will, and for an order directing transfer of the property to that estate. After a first amended petition was filed in June of 2006, respondents demurred to the pleading. At the hearing on the demurrer on October 23, 2006, the actions were consolidated for the purpose of trial, and the parties agreed to submit a joint written statement of facts to the trial court for resolution of the case. The statement of stipulated facts filed on December 1, 2006, specified that the trial court was authorized to finally and conclusively resolve the actions based on the facts stated and the briefs submitted by the parties.
For the sake of clarity and convenience, we will hereafter refer to Arthur Varone and his wife Lauren by their first names.
By then, a third petition had been filed by the trustee William Evers.
According to the stipulated facts, Arthur and Lauren owned the real property as joint tenants during their marriage. Arthur and Lauren did “not have any children together,” although Lauren had a daughter Gisela Varone (Gisela) from a previous marriage, and two grandsons, appellant and Arthur Woodall.
The Stipulated Facts state that Arthur “may have adopted” Gisela, but “the parties do not necessarily agree that that occurred.”
By the terms of a revocable trust executed by Arthur and Lauren in April of 1998 (the 1998 Trust), and an accompanying trust transfer deed, the real property was transferred into the trust as its sole asset. The real property retained its character in the 1998 Trust as community property of Arthur and Lauren. Arthur and Lauren were named the joint trustees and settlors of the 1998 Trust.
Article 3.2 of the 1998 Trust granted to the surviving settlor of the trust the power “at any time [to] amend, revoke, or terminate, in whole or in part, any trust created by this instrument other than the Disclaimer Trust,” by written instrument signed by the surviving settlor. On the death of either settlor, interests in the trust estate vested as of the date of death, although the trustee was granted discretion to delay or defer division or distribution of any of the trust estate. Article 5.3 provided that the remaining trust estate after payment of taxes, debts and expenses was to be deposited into a Power of Appointment Trust to “be held, administered, and distributed according to the terms of the Power of Appointment Trust, as set forth in Article Six.” The dispositive provisions of the Power of Appointment Trust in Article 6.1(c) directed the trustee to pay to the surviving settlor for life the entire net income of the trust and “as much of the trust principal as the surviving settlor may from time to time demand in a signed writing delivered to the trustee.” Under a general power of appointment granted to the surviving settlor, the trustee was also required to distribute all of the property subject to the trust to any entities or persons directed by the surviving settlor’s will. The trustee was mandated by Article 7.15 to retain any interest in the real property in the trust as a personal residence for the surviving settlor to occupy for “his or her lifetime,” with the option given to the surviving settlor, however, to direct the trustee in writing “to sell it, or any interest therein.” Under a default provision, if any property subject to the power of appointment trust was not effectively appointed during the life of the surviving settlor, it passed to the Disclaimer Trust, which upon the death of the surviving settlor was to be distributed to Gisela, or if she did not survive the surviving settlor to her issue, and if no issue survived to the St. Jude Children’s Hospital.
No trust property was disclaimed in the present case pursuant to Probate Code section 275, and thus no Disclaimer Trust was created. During the joint lifetimes of the settlors, the 1998 Trust was revocable or terminable as to the community property in the trust by written instrument signed by both settlors acting jointly.
Arthur and Lauren also concurrently executed joint and mutual wills in which they bequeathed all of their property to the trustee of the 1998 Trust, to add to the trust principal and distribute in accordance with the terms of the trust. In the event the 1998 Trust had been “revoked, terminated or declared invalid,” the residue was given to the executor – Arthur, in the case of Lauren’s will – as trustee to distribute under the terms of a trust “identical to the terms” of the 1998 Trust. Lauren further expressed in her will that if she predeceased her husband she revoked any consent given in her lifetime to “any nonprobate transfer” of her “community property interest in any asset,” to “anyone other than [her] husband,” and instead gave to Arthur her “community property interest in any assets affected by this revocation of consent.” The revocation of consent was expressly made subject to an exception for any community property included in any express trust of which she was a settlor or cosettlor, which continued “to be governed by the terms of the applicable trust instrument.”
Arthur’s will contained an identical provision.
Lauren died on May 11, 1999, whereupon Arthur became the surviving settlor of the 1998 Trust. On July 20, 1999, Arthur signed a written revocation of the 1998 Trust, and executed the “Arthur Varone Living Trust” (the 1999 Trust), in which he appointed himself sole grantor and trustee. He retained the right to all of the income, profits and control of the trust assets – that is, the real property – until his death. The 1999 Trust specified that upon the death of Arthur the trust property was to be distributed by the successor trustee to three designated beneficiaries in equal shares: The American Heart Association; The American Cancer Association; and St. Jude Children’s Research Hospital in Memphis, Tennessee. Arthur executed a Grant Deed on August 20, 1999, in which he conveyed the real property to himself as trustee of the 1999 Trust. By an amendment to the 1999 Trust, respondent William Evers became successor trustee.
The 1999 Trust specifically prohibited Gisela, appellant or Arthur Woodall from acting as trustee.
Following the death of Gisela, Arthur executed a Last Will and Testament (the Will) on February 12, 2004. The Will provided for the real property to be given to the successor trustee of the 1999 Trust, to hold, administer and distribute in accordance with the provisions of that trust. In the will, Arthur declared that he had no children, and neither Gisela nor Lauren’s “grandchildren [were to] be deemed [his] heirs for purposes of this Will.” Respondent Evers was appointed executor of Arthur’s estate.
Arthur died on April 7, 2004. After attempting without success to notify appellant and Arthur Woodall of Arthur’s death, respondent Evers sold the real property on August 1, 2004, and in December of 2004, made a preliminary distribution of the proceeds from the sale to the three charitable beneficiaries listed in the 1999 Trust – in the amount of $60,000 to each beneficiary. No assets remain in the 1999 Trust.
The trial court concluded after considering the Stipulated Facts that the 1998 Trust authorized the surviving spouse, Arthur, to “invade and take all of the trust principal,” and revoke or terminate the trust after the death of Lauren. The court further found that Lauren’s concurrently executed will in which she expressed her objective to grant Arthur “full power to dispose of all community property assets,” reaffirmed her “intent that the 1998 Trust and all of its terms govern the disposition of property she retained” or which may in the future arguably revert to her. The court therefore determined “that the parties intended to allow the surviving spouse to modify, terminate or revoke the distributive terms of the 1998 Trust, to allow the surviving spouse to use the trust assets and direct a different distribution as he saw fit.” The demurrers of respondent were “sustained, without leave to amend, effectively resulting in the denial of the petition itself” by order filed on February 8, 2007.
The trial court gave appellant the opportunity to depose the attorney who drafted the 1998 Trust or offer additional evidence of the parties’ intent associated with the trust document, but no additional facts were presented.
Appellant subsequently moved to vacate the judgment and for a new trial. On April 5, 2007, the trial court denied the motion, dismissed the action with prejudice, and entered a judgment in favor of respondents. This appeal followed.
DISCUSSION
Appellant argues that the trial court erred by failing to award him, as the intended ultimate beneficiary of Lauren’s estate, her one-half community property interest in the real property placed in the 1998 Trust. Appellant’s position is that Arthur had no authority to dispose of Lauren’s one-half community property interest in the trust, which upon her death vested in her estate and was transmuted into her separate property. Appellant acknowledges that as successor trustee Arthur had “the right to revoke the 1998 Trust following Lauren’s death in 1999,” and the right to a life estate in the real property, but claims the “revocation did not defeat Lauren’s estate plan,” which called for the “residue of her estate after expiration of Arthur’s life estate” to be distributed to appellant and Arthur Woodall – in the event her daughter Gisela failed to survive Arthur. He therefore maintains that Arthur’s attempt to convey “Lauren’s interest in fee” according to the terms of the 1999 Trust was “void as to Lauren’s interest,” and effective only to “convey Arthur’s one-half interest in the Property.” Appellant adds that since Arthur did not validly “exercise a power of appointment” and “did not otherwise consume the Property during his lifetime,” Lauren’s estate is entitled to her one-half interest, which passed to “Lauren’s two grandsons” as beneficiaries of her estate or the testamentary trust. He requests that we reverse the order that sustained the demurrer, reverse the judgment of dismissal, and remand the case to grant him the right to “recover Lauren’s one-half (community [property]) interest in the Property.”
We commence our review with recognition of the fundamental principles that control the disposition of community property upon the death of a spouse. Under Probate Code section 100, subdivision (a), “ ‘Upon the death of a married person, one-half of the community property belongs to the surviving spouse and the other half belongs to the decedent.’ [Citation.] Each spouse has the right of testamentary disposition over his or her half of the community property.” (Estate of Miramontes-Najera (2004) 118 Cal.App.4th 750, 756; see also People v. Simons (2007) 155 Cal.App.4th 948, 960.) “ ‘The rationale of this rule is founded in the nature of community property. “The respective interests of the husband and wife in community property during continuance of the marriage relation are present, existing and equal interests.” [Citation.] In other words, each spouse has a vested undivided one-half interest in the community property. Death of a spouse only dissolves the community; it does not affect the character of the property acquired or rights vested before the spouse’s death.’ ” (Estate of Miramontes-Najera, supra, at p. 757, quoting from Estate of Wilson (1986) 183 Cal.App.3d 67, 72–73.) Appellant is correct in asserting that upon Lauren’s death, Arthur, as surviving spouse, was entitled to only one-half of the real property held as a community property asset, subject to any testamentary disposition of the remaining one-half interest in the property by the decedent. (Estate of Klingenberg (1949) 94 Cal.App.2d 240, 243.)
All further statutory references are to the Probate Code unless otherwise indicated.
However, a husband and wife may enter “into a contract which provides for the surviving spouse to retain ownership of property previously owned jointly by the community.” (Estate of Petersen (1994) 28 Cal.App.4th 1742, 1750.) “Notwithstanding Section 100, community property held in a revocable trust described in Section 761 of the Family Code is governed by the provisions, if any, in the trust for disposition in the event of death.” (Prob. Code, § 104.) We thus examine and interpret the provisions of the 1998 Trust and the accompanying wills to determine the nature and extent of Arthur’s authority to dispose of Lauren’s community property interest in the real property held in the trust.
I. The Standard of Review.
This case took a rather atypical procedural path to judgment in the trial court, which impacts the nature of our review on appeal. What began as a demurrer was transformed by agreement of the parties into essentially a trial predicated upon their declaration of stipulated facts. The trial court then resolved the issue of interpretation of the trust and estate instruments executed by Arthur and Lauren upon undisputed facts, without any extrinsic evidence of the intent of the drafters. Therefore, on appeal the issue is one of law, which we review de novo. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18; 20th Century Ins. Co. v. Stewart (1998) 63 Cal.App.4th 1333, 1337; Carroll v. County of Los Angeles (1997) 60 Cal.App.4th 606, 608.) “ ‘Where, as here, a case is tried on stipulated facts and documentary evidence, we make our own determination of the questions of law presented by the stipulated facts. [Citation.]’ [Citation.]” (Baccouche v. Blankenship (2007) 154 Cal.App.4th 1551, 1554.) We are not bound by the trial court’s interpretation of the documents, and instead independently determine the issues of law presented. (Garamendi v. Mission Ins. Co. (2005) 131 Cal.App.4th 30, 40; Cole v. California Ins. Guarantee Assn. (2004) 122 Cal.App.4th 552, 556; Travelers Indemnity Co. v. Maryland Casualty Co. (1996) 41 Cal.App.4th 1538, 1543; City of Camarillo v. County of Ventura (1994) 26 Cal.App.4th 1351, 1354.) Further, “ ‘The possibility that conflicting inferences can be drawn from uncontroverted evidence does not relieve the appellate court of its duty independently to interpret the instrument; it is only when the issue turns upon the credibility of extrinsic evidence, or requires resolution of a conflict in that evidence, that the trial court determination is binding.’ [Citations.]” (Estate of Verdisson (1992) 4 Cal.App.4th 1127, 1135–1136.)
II. The Interpretation of the 1998 Trust and Wills.
Our interpretation of the terms of the testamentary documents is governed by “the Probate Code provisions governing construction of wills.” (Newman v. Wells Fargo Bank (1996) 14 Cal.4th 126, 134; see also Estate of Joslyn (1995) 38 Cal.App.4th 1428.) “The California Probate Code applies the same general rules of interpretation to ‘a will, trust, deed and any other instrument.’ [Citation.]” (Burkett v. Capovilla (2003) 112 Cal.App.4th 1444, 1449.) “ ‘ “The paramount rule in the construction of wills, to which all other rules must yield, is that a will is to be construed according to the intention of the testator as expressed therein, and this intention must be given effect as far as possible.” [Citation.] The rule is imbedded in the Probate Code. [Citation.] Its objective is to ascertain what the testator meant by the language he used.’ [Citation.]” (Newman, supra, at p. 134; see also Brown v. Labow (2007) 157 Cal.App.4th 795, 812.) “We give the words of the instrument their ‘ordinary and grammatical meaning unless the intention to use them in another sense is clear and their intended meaning can be ascertained.’ [Citation.]” (Burkett v. Capovilla, supra, at p. 1449.) The intent of the trustors “ ‘must be ascertained from the whole of the trust instrument, not just separate parts of it.’ [Citations.]” (McIndoe v. Olivos (2005) 132 Cal.App.4th 483, 487; see also Graham v. Lenzi (1995) 37 Cal.App.4th 248, 255; Scharlin v. Superior Court (1992) 9 Cal.App.4th 162, 168.) “Each case depends upon its own peculiar facts and thus case precedents have little value when interpreting a trust.” (McIndoe v. Olivos, supra, at p. 487.)
Upon our review of the provisions of the 1998 Trust and accompanying joint wills of Arthur and Lauren, we agree with the trial court’s interpretation of the testamentary documents. We find in the documents an overriding and clear intent to grant to the surviving spouse an unconditional interest in the entirety of the community property placed in the 1998 Trust, along with the right to create a new disposition of the trust assets. First, the trust estate passed into the Power of Appointment Trust upon the death of Lauren after payment of taxes, debts and expenses. The surviving settlor then had the right to demand the trustee to “pay” him the entire net income of the trust for life, and as much of the trust principal as he demanded. Appellant’s assertion that use of the term “pay” limited the right of the surviving settlor to receive “money realized from the Property,” is contravened by the general power of appointment also stated in the 1998 Trust that created the unconditional right on the part of Arthur, as surviving settlor, to withdraw or obtain all of the trust assets and to distribute the property to any entities or persons he directed. “ ‘ “In construing a trust instrument, the intent of the trustor prevails and it must be ascertained from the whole of the trust instrument, not just separate parts of it. [Citation.]” [Citation.]’ ” (Ike v. Doolittle (1998) 61 Cal.App.4th 51, 73, quoting from Wells Fargo Bank v. Marshall (1993) 20 Cal.App.4th 447, 453.)
The unfettered right to distribution of the trust property was coupled with an explicit power of revocation of the 1998 Trust. Then, upon death of the surviving settlor, the 1998 Trust provided that the interest in the family residence or proceeds from its sale were to be distributed “in accordance with the applicable provisions of the trust or trusts in which the interest or interests are held,” in accordance with the power of appointment held by the surviving spouse. When the provisions of the 1998 Trust are viewed in their entirety, the intent of the parties is unmistakable: Arthur, the surviving settlor, had the authority to either consume all of the trust assets, or to revoke the trust and provide for whatever new disposition he wished.
Nothing in the terms of the 1998 Trust indicates that Arthur’s rights were in any way limited to his own community property interest in the assets. To the contrary, he was specifically given the power to revoke the trust “in whole or in part.” (Italics added.) He also had the right to receive as “much of the trust principal” as he demanded, to require the trustee to sell the family residence and reinvest the entire proceeds in any manner he decided, or to direct the distribution of “all property subject to the trust.” (Italics added.) The parties manifestly intended that all of the trust property, without exception or limit – not just a one-half community property interest – was to pass to the ownership and control of the surviving spouse.
Lauren’s will reaffirms rather than contravenes the testamentary intent stated in the 1998 Trust. In her will Lauren gave “all” of her property to the trustee of the 1998 Trust, Arthur, and expressed that the terms of the trust would govern the disposition of her property. In the event Lauren predeceased Arthur, her will further revoked any nonprobate transfer of a “community property interest in any asset” to anyone other than Arthur made during her lifetime, and instead gave to Arthur her “community property interest in any assets affected by this revocation of consent,” subject to the terms of the 1998 Trust. She also explicitly articulated her intent that Arthur “shall have full power to dispose of all community property assets” if she predeceased him. (Italics added.) The joint and mutual wills executed by the parties thus contemplated that the surviving spouse would have the right and authority to deal with the entirety of their community property as the 1998 Trust directed. We must presume that Lauren was aware of the terms of the 1998 Trust, and acceded to the disposition of the whole of her community property interest as specified in the two testamentary documents. (See Estate of Klingenberg, supra, 94 Cal.App.2d 240, 243.)
Appellant relies on the decision in Estate of Powell (2000) 83 Cal.App.4th 1434 (Powell), to support his claim that Lauren did not part with her community property interest in the real property upon her death. In Powell, the husband and wife executed a trust in 1991 which named the wife as trustee and Ronald, her son by a prior marriage, as successor trustee. Both trustors were named beneficiaries, and upon the death of either trustor, the survivor became the sole beneficiary. Upon the death of both trustors, the trust assets were designated to be distributed to Ronald. The trust provided that it could be revoked “ ‘at any time during the lifetime of either Trustor . . . .’ ” (Id., at p. 1440.) The wife also executed a will leaving all of her property to the trust to be distributed in accordance with the trust’s provisions. After the wife died, the husband revoked the trust; Ronald challenged the revocation. The court determined that the revocation following the death of the wife was effective, but only as to one-half of the trust corpus, which was “transmuted from community to separate property” upon the wife’s death in accordance with section 100. (Powell, supra, at p. 1441.) The court in Powell found that under section 15401, subdivision (b), the husband’s revocation was “therefore effective only as to his half of the trust corpus,” and the wife’s half “was subject to disposition as provided in her will, i.e., in accordance with the provisions of the 1991 trust” that designated Ronald as the beneficiary. (Powell, supra, at p. 1441.)
Subdivisions (a) and (b) of section 15401 provide: “(a) A trust that is revocable by the settlor may be revoked in whole or in part by any of the following methods: [¶] (1) By compliance with any method of revocation provided in the trust instrument. [¶] (2) By a writing (other than a will) signed by the settlor and delivered to the trustee during the lifetime of the settlor. If the trust instrument explicitly makes the method of revocation provided in the trust instrument the exclusive method of revocation, the trust may not be revoked pursuant to this paragraph. [¶] (b) Unless otherwise provided in the instrument, if a trust is created by more than one settlor, each settlor may revoke the trust as to the portion of the trust contributed by that settlor, except as provided in Section 761 of the Family Code.”
The reasoning in Powell is subject to dispute, at least where the trust instrument by its terms overtly grants the surviving settlor the right to amend or revoke the entirety of the trust. While subdivision (b) of section 15401 specifies that a trust created by more than one settlor may be revoked “as to the portion of the trust contributed by that settlor,” it also adds the critical caveat, “Unless otherwise provided in the instrument.” In addition, notwithstanding the directive in section 100 that upon the death of a married person one-half of the community property belongs to the surviving spouse and the other half belongs to the decedent (Tyre v. Aetna Life Ins. Co. (1960) 54 Cal.2d 399, 404–405; Estate of Miramontes-Najera, supra, 118 Cal.App.4th 750, 756), under section 104 community property held in a revocable trust is governed by the provisions in the trust for disposition in the event of death. A glaring factor that distinguishes the present case from Powell is the inclusion in the 1998 Trust of a provision that expressly gave Arthur as surviving settlor the power to revoke the trust during his lifetime. The power of revocation was not limited to the one-half community interest of the surviving settlor. Rather, Arthur was specifically given the power to revoke the trust “in whole.”
The Powell opinion did not refer to the language in section 15401, subdivision (b) that permits a trust instrument to alter the statutory disposition of trust property by a surviving settlor.
The 1998 Trust and joint wills of the parties also provided, in contrast to the facts described in Powell, for a distribution of Lauren’s one-half community property interest to Arthur and his designees following her death. Thus, even if the community property in the 1998 Trust became separate property upon Lauren’s death, and Arthur’s revocation of the trust was effective only as to his one-half separate property interest, the remaining separate property interest of Lauren’s estate in the real property continued to be a part of the Trust and subject to distribution in accordance with the terms of the trust instrument. The 1998 Trust and Lauren’s will required “all” residual property, including her prior community property interest in the trust corpus, to be added to, administered and distributed in accordance with the provisions of the trust. Under the trust and will, Lauren granted to Arthur her “community property interest” in the trust assets and “full power to dispose of all community property assets” to any entities or persons designated by him following her death. The language of the testamentary documents demonstrates Lauren’s intent to let Arthur as surviving spouse make the ultimate decision about the distribution of all of the trust assets if she predeceased him.
III. Arthur’s Revocation of the 1998 Trust, Creation of the 1999 Trust, and Conveyance of the Real Property.
Arthur validly revoked the 1998 Trust after the death of Lauren. The Stipulated Facts establish that on July 20, 1999, surviving settlor and trustee, Arthur, signed a written revocation of the 1998 Trust, and executed the 1999 Trust, which effectively returned legal ownership of all of the trust assets to himself. The revocation complied with the terms of the 1998 Trust, which in Article 3.2 provided that the trust was subject to the power of the surviving settlor to revoke the trust in whole or in part by any signed written document. Soon thereafter, Arthur exercised the right granted to him by Lauren to convey the real property to the 1999 Trust, with himself as sole grantor and trustee. Arthur was not required to exercise the power of appointment stated in the 1998 Trust to do so, as the trust had been revoked. He also subsequently drafted a will that directed the successor trustee of the 1999 Trust to hold, administer and distribute the real property in accordance with the provisions of that trust. The property thus did not pass under the default provision of the 1998 Trust into the Disclaimer Trust and to Gisela’s heirs upon Arthur’s death, but instead pursuant to the terms of the 1999 Trust and Arthur’s will to Evers as successor trustee, and thence to respondents as the designated beneficiaries.
IV. The Denial of Appellant’s Motion for a New Trial.
Finally, we confront appellant’s contention that the trial court erroneously denied his motion for a new trial, which was based upon claims of a “surprise” interpretation of the 1998 Trust by the trial court, and irregularity of the proceedings that prevented him from presenting additional extrinsic evidence of intent – in the nature of excerpts from the deposition of the drafting attorney. Appellant argues that the new trial motion was a “proper procedure,” and “alleged meritorious grounds.” The trial court found that appellant had not presented grounds to support a new trial, and failed to meet the requirements for a motion for reconsideration (Code Civ. Proc., § 1008).
Without considering respondents’ objection that the denial of a motion to vacate the judgment and for new trial in the probate court is not appealable, we find no error in the denial of the motion. No “surprise” is associated with the trial court’s ruling. The court interpreted the testamentary documents precisely as respondents proposed. Further, presentation of additional evidence was not justified. The parties agreed to present the case on the Stipulated Facts, any memoranda of points and authorities, and matters that “can be judicially noticed.” They expressly waived the right to present additional evidence and witnesses. Appellants did not seek to present any additional extrinsic evidence to the court before the trial court’s initial ruling, and offered no cognizable excuse for failing to do so in the motion for new trial.
“Generally, rulings in probate proceedings are not appealable unless expressly made appealable by statute. (Varney v. Superior Court (1992) 10 Cal.App.4th 1092, 1098 [12 Cal.Rptr.2d 865]; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 156, p. 221.)” (Estate of Martin (1999) 72 Cal.App.4th 1438, 1441–1442.) The provisions of section 1300, which govern appeals in probate proceedings, “are exclusive—no appeal lies from orders which are not enumerated therein.” (Conservatorship of Rich (1996) 46 Cal.App.4th 1233, 1235.) An order denying a motion to vacate a judgment or for a new trial motion are not listed in section 1300 among the appealable orders. And, orders denying motions to vacate a judgment or for a new trial are not separately appealable in any proceeding. (See Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139, 1146; see also Herr v. Nestlé U.S.A., Inc. (2003) 109 Cal.App.4th 779, 787, fn. 12; Thompson v. Friendly Hills Regional Medical Center (1999) 71 Cal.App.4th 544, 548, fn. 2; Gallup v. Board of Trustees (1996) 41 Cal.App.4th 1571, 1573, fn. 1.)
And in any event, the additional evidence proffered by appellant in support of his motion – that is, the deposition testimony of the attorney who drafted the 1998 Trust for Arthur and Lauren – does not bring into doubt the trial court’s interpretation of the trust instrument. Extrinsic evidence as to the circumstances under which a written instrument was made is admissible to interpret the instrument, not to give it a meaning to which it is not reasonably susceptible. (Ike v. Doolittle, supra, 61 Cal.App.4th 51, 73.) On review of the trial court’s interpretation of a trust document, it “ ‘is the intention of the trustor, not the trustor’s lawyer, which is the focus of the court’s inquiry. . . .’ ” (Id., at pp. 73–74, quoting Wells Fargo Bank v. Marshall, supra, 20 Cal.App.4th 447, 453.) The references in the attorney’s deposition testimony to the dispositive provisions of the Disclaimer Trust in the event Arthur, Lauren, and Gisela died without revocation of the 1998 Trust do not contravene the interpretation of the other pertinent dispositive provisions of the trust upon which the trial court relied to rule in favor of respondents. The new trial motion was properly denied.
DISPOSITION
Accordingly, the judgment is affirmed. Costs on appeal are awarded to respondents.
Respondents have requested that we impose sanctions on appellant for pursuing a frivolous appeal pursuant to California Rules of Court, rule 8.276. We do not find the present appeal frivolous, and therefore do not impose sanctions on appellant.
We concur: Marchiano, P. J., Stein, J.