Opinion
NOT TO BE PUBLISHED
(Super. Ct. No. 04PR00801)
BUTZ, J.
Ivo Kovacevich appeals from a judgment denying his petition to set aside amendments to a living trust and for damages. Ivo and Anna Kovacevich are brother and sister. Rudolf Kovacevich, their now deceased uncle, was the brother of their father. As a result of certain amendments to Rudolf’s living trust, Ivo received less than had earlier been allocated to him. Ivo filed this action to set aside the amendments as procured through fraud or undue influence of Anna or to obtain equitable relief from the distribution of property under the trust. He contends the trial court erred in failing to award him relief. We shall affirm the judgment.
As the family members all have the same surname, we use their first names for the sake of convenience. No disrespect is intended.
FACTUAL AND PROCEDURAL BACKGROUND
In 1964 Anna came to the United States from Croatia. She lived with Rudolf and his wife until 1971. She remained on amicable terms with Rudolf until his death. In 1986 Ivo also immigrated from Croatia to the United States. His relations with Rudolf were amicable at first, but they became estranged.
In June of 1992, Rudolf executed a declaration of revocable living trust. Initially, it provided the trust estate would be distributed to three of his brothers and a sister-in-law. Thereafter, he amended the trust, altering the distribution, in 1996, 1997, 2000 and 2002. Under each of the amendments Anna was named the trustee.
The 1997 edition of the trust gave Rudolf’s home to Anna and the remainder of his property to Anna and Ivo in equal shares.
In the late 1990’s Ivo made improvements and repairs to real properties owned by Rudolf. Ivo received some funds from Rudolf for these endeavors. Some of the checks were written to Ivo personally, some to suppliers, and some to workers. The parties dispute whether the amount paid was adequate compensation for Ivo’s work on one of the real properties.
In 1998 or 1999 Ivo discussed with Rudolf a loan to pay off a mortgage on Ivo’s home. Rudolf paid $73,000 directly to the mortgagors.
In 2000 Ivo made a trip to Croatia at the request of Rudolf to deliver some money to relatives and to fix a family tombstone. When Ivo returned, he quarreled with Rudolf over matters including the execution of his errands in Croatia and repayment of the $73,000. He threatened Rudolf with bodily harm and Rudolf was “very, very upset.” Anna testified that the core of Rudolf’s resulting animosity toward Ivo was outrage at his disrespect during the quarrel, not the failure to repay the money.
After the quarrel, in the winter of 2000, Ivo went to see Gerald Thomas, an attorney, about the disagreement concerning repayment of the money. Thomas telephoned Anna and discussed the repayment of the $73,000. He told her that Ivo was willing to execute a note and deed of trust acknowledging and securing the debt.
A few days later, Anna went with Rudolf to see Brian Regan, an attorney. Rudolf told Regan he wanted to change the distribution of the trust to provide that Ivo would receive only a forgiveness of the obligation to repay the $73,000. The revised trust amendment was prepared and, on November 13, 2000, Rudolf executed it.
Thomas sent a letter, dated November 16, 2000, to Anna recounting his version of their telephone conversation. Anna showed the letter to Rudolf who directed her to throw it in the trash. They tried, unsuccessfully, to telephone Thomas to tell him that Rudolf wanted the money repaid rather than a note. At trial Anna denied the truth of some of the assertions in Thomas’s letter about their conversation. She did not reply to the letter nor raise the discrepancies with Ivo. She believed it was up to Rudolf whether or not to pursue the issue and she was not on friendly terms with Ivo.
The final edition of the trust was prepared by Attorney Regan and was executed by Rudolf in April of 2002. Rudolf initiated and conducted this redraft alone. He had realized that Ivo might potentially inherit from him as the issue of another beneficiary if Anna died before Rudolf. He directed Regan to preclude this potential outcome.
Rudolf died on February 29, 2004. On June 1, 2004, Ivo filed this action against Anna to obtain a declaration that the 2000 and 2002 amendments of the trust were invalid on grounds of Rudolf’s incapacity or mistake concerning their effect, or fraudulent misrepresentation, undue influence, duress, coercion, or breach of fiduciary duty by Anna, and to recover trust property on a claim of estoppel.
Following the three-day bench trial the court announced a tentative decision entirely in favor of Anna. Ivo timely requested a statement of decision. Anna submitted, sua sponte, a proposed statement of decision. Ivo filed an opposition to the proposal on the ground that it contained a finding that the action had been filed in bad faith. On June 20, 2006, the court issued the following statement of decision and judgment pursuant thereto was entered in favor of Anna.
A premature notice of appeal was filed from this ruling, on June 19, 2006, before rendition of the judgment. In keeping with the practice under California Rules of Court, rule 8.104(e)(2) (further rule references are to these rules), we treat the notice of appeal as filed immediately after entry of judgment.
“The Court finds that Rudolph R. Kovacevich died in Sacramento County on February 29, 2004. As a result of his death, the Third Amendment to Amended and Restated Rudolph R. Kovacevich Trust of June 11, 1992, executed on April 26, 2002, became irrevocable. Anna Kovacevich, the Respondent herein, was the named Trustee of the Third Amended Trust. The Court finds that at all relevant times to these proceedings and particularly on April 26, 2002, that Rudy Kovacevich had the full mental capacity to understand the nature of his undertakings and to understand all of the documents that were entered into evidence[] in this case as executed by him, including his original Will and Trust documents and all subsequent amendments thereto. The Court further finds that Rudolph R. Kovacevich understood the nature and extent of all of his properties and holdings, both real and personal, and was neither incompetent nor delusional.
“The Court finds that at all times prior to the death of Rudolph R. Kovacevich, all Trust documents were revocable and that Rudolph R. Kovacevich was the person holding the power to revoke. Pursuant to the [p]rovisions of Probate Code [section] 15800, Rudolph R. Kovacevich had the rights afforded the beneficiaries of the Trust and that as Trustee, Anna Kovacevich owed him, and only him, the duties of the Trustee.
“The Court specifically finds that Anna Kovacevich did not actively participate in the preparation of or execution of the donated instrument which was the Third Amendment to the Trust dated April 26, 2002.
“The Court finds that the Petitioner, Ivo Kovacevich, had been a beneficiary in the March 20, 1996, Trust and the First Amendment thereto dated October 7, 1997; however, Ivo Kovacevich was removed as a beneficiary by Rudolph R. Kovacevich following a serious dispute between he and Rudolph R. Kovacevich.
“The Court finds that Probate Code [section] 15800, establishes that Anna Kovacevich owed no duty to Ivo Kovacevich at the time of Rudolph R. Kovacevich’s death.
“The Court further finds that the Petition filed by Ivo Kovacevich is unsupported by evidence.
“The Court further finds that Petitioner has not met the burden of proof under any of the causes of action alleged in the Petition, including that of equitable estoppel, and accordingly finds in favor of the Respondent against Petitioner and orders that Petitioner take nothing by reason of his Petition herein.
“No evidence was presented to support Respondent’s contention that the Petition was filed in bad faith. Accordingly, Respondent’s claim for attorney fees pursuant to Probate Code [section] 15642[, subdivision] (b) [sic] is denied. Respondent shall have her costs of suit herein incurred.”
It appears the trial court meant section 15642, subdivision (d).
DISCUSSION
I. No Breach of Fiduciary Duty
Ivo contends that the trial court erred in holding that, under section 15800, Anna owed him no fiduciary duty as the trustee. Ivo argues that, notwithstanding that statute, Anna owed him a fiduciary duty at the time of the 2000 amendment, as he was a beneficiary under the trust when Rudolf died. Alternatively, he argues that he should be accorded derivative standing to complain of Anna’s claimed breach of fiduciary duty to Rudolf. Neither argument is persuasive on this record.
Section 15800 is as follows:
As related the trial court opined as follows: “[Section] 15800, establishes that Anna Kovacevich owed no duty to Ivo Kovacevich at the time of Rudolph R. Kovacevich’s death.”
Ivo first complains of the remark in the statement of decision that: “[Ivo] was removed as a beneficiary by [Rudolf] following a serious dispute between he and [Rudolf].” He submits this is incorrect because he remained a beneficiary as he was granted a forgiveness of any obligation to repay the $73,000 advanced by Rudolph to pay off his mortgage. We shall assume for the sake of discussion his parsing is correct.
Ivo next asserts that because he was a beneficiary of the trust, as related above, Anna owed him a fiduciary duty before Rudolf died, notwithstanding the provision of section 15800 that during the time that a trust is revocable the duties of the trustee are owed to the person holding the power to revoke. He points to Evangelho v. Presoto (1998) 67 Cal.App.4th 615 (Evangelho), which upheld an accounting requested by trust beneficiaries concerning an alleged conversion of trust assets before the death of the settlor.
The Evangelho holding does not support the view that the fiduciary duty allegedly breached was owed to the beneficiaries. It addresses only the right to demand an accounting and decides that, while the trustee is not required to account to a beneficiary during the time the trust may be revoked (see § 16064, subd. (b)), thereafter, the trustee can be required so to account. (Evangelho, supra, 67 Cal.App.4th at p. 623 & fn. 6.)
However, the right to an accounting is limited to matters “relevant to the beneficiary’s interest.” (§ 16061.) Under Ivo’s theory of his beneficiary interest, his potential right to an accounting goes nowhere. There is no basis for a claim that his interest, the forgiveness of any obligation to repay the $73,000, was or could be impaired by Anna’s alleged misconduct.
Ivo’s alternate argument is that, in any event, he should be accorded derivative standing to complain of Anna’s claimed breach of fiduciary duty to Rudolf. He claims that Anna was obliged, as the trustee under the existing version of the trust, to inform Rudolf of Ivo’s offer through his attorney to repay the $73,000 under a promissory note arrangement. He asserts there is no evidence that Anna shared this information with Rudolf before the 2000 amendment of the trust.
The absence of evidence is not evidence of absence of an occurrence. It was Ivo’s burden to show breach of fiduciary duty. He fails to point to evidence that Anna failed to inform Rudolf of his offer, e.g., an admission by Anna that she did not inform Rudolf of this conversation, before the execution of the 2000 amendment. Moreover, we are unwilling to say that the trial court, sitting in equity, could not have found any such breach of duty by Anna to Rudolf inconsequential. The trial court could have deemed it cured by subsequent revelation of the conversation between Anna and Thomas before the 2002 amendment, and the passage of time between the amendments in 2000 and 2002 and Rudolf’s death in 2004 without further alteration of the trust in Ivo’s favor.
For all the foregoing reasons, Ivo fails to show the error, if any, in the remarks of the trial court concerning breach of fiduciary duty was prejudicial.
II. No Undue Influence
Ivo contends that the trial court erred in failing to set aside the 2002 amendment to the trust on the ground of undue influence. He argues that the ruling was incorrect because he was entitled to a presumption that Anna procured this testamentary instrument by undue influence. The argument is unpersuasive and the contention of error has no merit.
Ivo acknowledges that the presumption requires that the person alleged to have exerted undue influence actively participate in procuring the instrument and that here the trial court expressly found Anna did not so participate in procuring the 2002 amendment. However, he suggests that the court could have found that she actively participated in procuring the 2000 amendment by undue influence and would then have been compelled to apply the taint derivatively to the 2002 amendment. He argues that because there is no express finding concerning the procurement of the 2000 amendment the matter should be returned to the trial court for resolution of that issue.
Preliminarily, we address the irregularity in the issuance of the statement of decision. Here there was no proposed statement of decision of the court allowing prejudgment objections. Under former rule 232 (amended and renumbered as rule 3.1590, effective January 1, 2007) in these circumstances, the court must prepare a proposed statement of decision and afford parties 15 days thereafter to file objections. (Former rule 232(c) & (d) [now rule 3.1590(e) & (f)].) Under Code of Civil Procedure section 634, if a party makes a timely and unheeded objection that a statement of decision fails to resolve an issue: “it shall not be inferred on appeal . . . that the trial court decided in favor of the prevailing party as to those facts or on that issue.”
Citing Code of Civil Procedure section 634, Ivo argues that we should not accord the judgment the usual presumptions and inferences in its support because the trial court failed to follow the proposed statement of decision procedure. He suggests that he was deprived of the opportunity to object to the statement of decision as a result of this irregularity. However, to obtain the benefit of section 634, a party must exhaust every available avenue to cure the claimed lacunae: “[T]he record [must] show[] that the omission or ambiguity was brought to the attention of the trial court either prior to entry of judgment or in conjunction with a motion under [Code of Civil Procedure] Section 657 [new trial] or 663 [motion to vacate].” (Code Civ. Proc., § 634; see also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1132 [“Husband failed to object to either the proposed statement or the final statement, nor did he move for a new trial (Code Civ. Proc., § 657) or move to vacate the judgment ([id.,] § 663),” fns. omitted].)
“[T]he consequence of a holding that a party is not required to raise defects in the trial court’s statement would be to delay the final settlement of a dispute because, as the Court of Appeal pointed out, ‘a losing litigant can delay the process by appealing the statement on procedural grounds, wait for the appellate court to remand for a proper statement, and then finally appealing any substantive claims.’ We must avoid if possible a construction of [Code of Civil Procedure] section 634 that could have this undesirable result.” (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1138.)
Here there is no indication that Ivo sought to remedy the court’s procedural error of issuing the statement of decision without first issuing a proposed statement of decision. To do so he could have moved for a new trial on this ground or moved to vacate the judgment. (See, e.g., Code Civ. Proc., § 662; 7 Witkin, Cal. Proc. (4th ed. 1997) Trial § 408, p. 468.) Accordingly, the ordinary presumptions on appeal following a statement of decision are applicable.
Thus, we infer in support of the judgment that Anna did not actively participate in procuring the 2000 amendment and that there is no taint to carry forward derivatively. Alternatively, we infer in support of the judgment that, if there were such a taint, in these circumstances, the passage of time between the 2000 amendment and the 2002 amendment and between the amendments and Rudolf’s death in 2004 without alteration of the trust in Ivo’s favor, was sufficient to attenuate any such taint completely. The trial court did not err in failing to set aside the 2002 amendment to the trust on the ground of undue influence.
III. No Constructive Fraud
Ivo next contends that the trial court erred in failing to grant him relief on the theory of constructive fraud. He argues that the evidence showing constructive fraud was undisputed, to wit: Anna concealed from Ivo that Rudolf desired to have the $73,000 repaid in a cash lump sum, rather than via a note, he relied on this in failing to repay, and Rudolf disinherited him because he did not repay. The argument is unpersuasive and the contention of error has no merit.
This is a no substantial evidence argument. “With rhythmic regularity it is necessary for U.S. to say that where the findings are attacked for insufficiency of the evidence, our power begins and ends with a determination as to whether there is any substantial evidence to support them; that we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn there from.” (Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370, disapproved on a different ground in Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866, fn. 2.)
The trial court was not compelled to conclude that Rudolf would have reconciled with him if only Ivo had offered to repay the $73,000 in a cash lump sum; to credit Ivo’s assertion that he would have paid the sum in cash if only Anna had informed him that Rudolf desired such a repayment; or to conclude that the failure to repay the advance was the cause of Ivo’s disinheritance. One plausible view of the evidence is that Rudolf was outraged by the abuse he received from Ivo during their quarrel and that, while his sense of injustice was increased by consideration of his earlier benificence, it was that insult rather than any injury by failure to repay which fueled Rudolf’s enmity. It is also plausible to read this view as the gist of the message that Anna conveyed to Ivo. Ivo offers no persuasive argument to overturn the ruling that he failed to prove constructive fraud.
IV. Claim of Estoppel Fails
Ivo contends that the trial court erred in failing to grant him relief on his claim for estoppel. He argues that the evidence supporting this claim is undisputed. This is another no substantial evidence claim. The argument is unpersuasive and the contention of error is meritless.
Ivo claimed that Rudolf had promised that if Ivo made uncompensated improvements to one of his real properties he would receive title to it when Rudolf died. To enforce such a promise requires a writing signed by the decedent evidencing the contract or a showing of equitable estoppel to require a writing. (See Estate of Housley (1997) 56 Cal.App.4th 342, 352.) Equitable estoppel requires either a showing that in reliance upon the promise, the claimant so changed his position that unconscionable injury would be suffered, or that the promisor accepted the benefits of the oral contract and would be unjustly enriched by non enforcement. (Ibid.) We note that an estoppel claim requires clear and convincing evidence. (Id. at p. 358.)
As Anna notes, the evidence about the amount and value of the work that Ivo performed is vague. The trial court was not constrained to accept Ivo’s self-serving account of the transaction as a contractual engagement, that he relied upon Rudolf’s remark to his detriment, or that the amount of detriment was such as to present an unconscionable injury. It is undisputed that Rudolf gave Ivo $73,000 to defray his mortgage obligation. Ivo fails to establish that the trial court erred in rejecting his claim of estoppel.
DISPOSITION
The judgment is affirmed. Anna shall recover her costs of this appeal. (Rule 8.276(a)(2).)
We concur: RAYE , Acting P. J., ROBIE , J.
“Except to the extent that the trust instrument otherwise provides or where the joint action of the settlor and all beneficiaries is required, during the time that a trust is revocable and the person holding the power to revoke the trust is competent:
“(a) The person holding the power to revoke, and not the beneficiary, has the rights afforded beneficiaries under this division. “(b) The duties of the trustee are owed to the person holding the power to revoke.