Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. S-1500-PB-54063. Louie L. Vega, Commissioner.
Dowling, Aaron & Keeler, Inc., William J. Keeler, Jr., Leigh W. Burnside and Lynne Thaxter Brown for Defendant and Appellant.
Barnes, Kohler & Monje, Jonathan B. Barnes and Linda M. Monje for Plaintiff and Respondent F. Michael Noriega.
Meserve, Mumper & Hughes, Michael A. Angel and Russell G. Gomm for Plaintiff and Respondent Monte Holcomb Paul Evetts.
OPINION
HARRIS, Acting P.J.
STATEMENT OF THE CASE
On February 15, 1996, Holcomb and Alma Evetts executed the Holcomb and Alma Evetts Revocable Family Trust in Hanford, California.
On July 23, 2001, settlor Alma Evetts died.
On June 5, 2002, surviving settlor Holcomb Evetts amended his survivor trust to give all of the general partnership interests in Overland Cattle Company to his son Monte Holcomb Paul Evetts to be held in trust for the benefit of Monte Holcomb Paul Evetts.
On March 7, 2003, surviving settlor Holcomb Evetts died.
On April 29, 2005, successor trustee F. Michael Noriega filed a first and final accounting of the revocable trust in Kern County Superior Court. The accounting reflected total charges and credits of $2,147,522.44, prayed for attorney fees and trustee’s fees, and prayed for distribution of assets of the trust estate to the beneficiaries, appellant Tonja Ann Evetts Pearce and respondent Monte Holcomb Paul Evetts (Evetts).
On June 14, 2005, appellant filed a written objection to first and final accounting alleging trustee failed to properly allocate trust assets under the terms of the trust agreement and Probate Code and improperly charged expenses and estate tax liability of the trust against her beneficial interest in the trust estate.
On July 27, 2005, the parties and their counsel stipulated to Commissioner Louie L. Vega, acting as a judge pro tempore of the superior court, and Commissioner Vega continued a hearing on the first and final accounting of the trustee.
On August 4, 2005, trustee Noriega filed a supplement to the first and final accounting to include copies of the February 15, 1996 revocable trust agreement and the June 5, 2002 first amendment to that agreement.
On August 10, 2005, trustee Noriega filed an amended supplement to the first and final accounting to correct the caption in the supplement to the first and final accounting filed August 4, 2005.
On September 7, 2005, the first and final accounting came on for hearing and was continued to October 27, 2005. At this time the court directed trustee Noriega to file a petition for instructions no later than September 16, 2005, and the parties to file responses no later than October 7, 2005.
On September 16, 2005, trustee Noriega filed a petition for instructions regarding first and final accounting and for interpretation of a bequest in the revocable trust agreement. The trustee petitioned for instructions with respect to interpretation of paragraph 4(a)(4) of article nine of the trust agreement. The trustee indicated that appellant interpreted paragraph 4 as a specific bequest while respondent Evetts interpreted paragraph 4 as a general bequest and that their interpretations led to different results in the first and final accounting.
After ordering continuances on January 12 and February 2, 2006, the court on March 2, 2006, conducted a contested hearing on the petition for instructions and took the matter under submission. On the same date, the court tentatively reset the hearing on the first and final accounting for April 27, 2006, a date after a decision would issue on the petition for instructions.
On the same date, trustee Noriega filed a written reply to appellant’s objection to the first and final accounting.
On March 17, 2006, the court filed a minute order ruling on the petition for instructions. The court held “that Article Ninth, paragraph 4(a)(4) was intended by the settlors to be a general gift to Objector [the appellant].”
On April 13, 2006, trustee Noriega filed a second amendment and supplement to the first and final accounting. The second amendment included new schedules of assets on hand and cash disbursements and receipts to bring these documents “more current with an ending date of March 31, 2006.”
On April 21, 2006, the superior court filed a formal order regarding petition for instructions, stating in relevant part, “… F. Michael Noriega, as Trustee of the Holcomb and Alma Evetts Revocable Trust dated February 15, 1996, is instructed and directed that Article Ninth, paragraph 4(a)(4) of the Trust was intended by the settlors to be a general gift to Tonya [sic] Ann Evetts Pearce.” As part of its order, the court confirmed the hearing date of April 27, 2006, for the first and final accounting and petition for allowance of attorney fees and costs.
On April 26, 2006, appellant filed a supplemental objection to the second amendment and supplement to first and final accounting. Among other things, appellant alleged the trustee failed to account for three separate trusts that were established upon the death of Alma Evetts and failed to properly report or account for Holcomb Evetts’s conversion of Overland Stock Yards stock into promissory notes.
On May 2, 2006, trustee Noriega filed a third supplement to the second amendment to the first and final accounting to correct an error in addition on amended exhibit A, an attachment setting forth trust receipts.
On May 26, 2006, trustee Noriega also filed a written reply to appellant’s supplemental objection to the second amendment and supplement to first and final accounting.
On June 14, 2006, appellant filed a second supplemental objection to the second amendment to the first and final accounting. She alleged the first and final accounting, as supplemented, failed to include all trust assets and overvalued certain promissory notes made payable to the three sub-trusts.
On July 28, 2006, trustee Noriega filed a written reply to appellant’s second supplemental objection to second amendment to the first and final accounting.
On July 28, 2006, respondent Evetts filed written opposition to appellant’s second supplemental objection to the second amendment to first and final accounting.
On August 10, 2006, the court took the cause (the first and final accounting and petition for fees) under submission based upon the pleadings.
On August 17, 2006, trustee Noriega filed a fourth supplement to the second amendment to the first and final accounting. The purpose of the fourth supplement was “to reflect Attorney’s Fees and Costs and Trustee’s Fees and Costs through July 31, 2006 so all fees and costs are up to date since the last hearing date of June 15, 2006.”
On August 31, 2006, the court filed a minute order and attached rulings stating in relevant part:
“1. The objections to the Petition are overruled en toto; [¶] 2. The petition, including all amendments to date, is approved; [¶] 3. Trustee’s request that Objector [appellant Pearce] pay all attorney’s fees, Trustee’s fees and costs associated with defending against the objections is denied; finally, [¶] 4. Trustee is ordered to prepare the Order after hearing consistent with this Court’s ruling in order to close the Trust.”
On September 8, 2006, attorney Michael A. Angel filed a receipt of final distribution of a $50,000 check and three promissory notes from the Holcomb and Alma Evetts Revocable Family Trust to the Monte Holcomb Paul Evetts Irrevocable Trust. On September 20, 2006, trustee Noriega filed a final order for first and final accounting of the Holcomb and Alma Evetts Revocable Family Trust and petition for allowance of attorney fees and costs and trustee’s fees. An exhibit to the order reflected a cash deficit of $45,090.95 in the trust estate.
On October 31, 2006, appellant Pearce filed a notice of appeal from the August 31, 2006, minute order.
With respect to a trust, the grant or denial of any final order under Probate Code section 17200 and subsequent sections is appealable. (Prob. Code, § 1304, subd. (a); Code of Civ. Proc., § 904.1, subd. (a)(10).) Probate Code section 17200 governs proceedings to settle the accounts and pass upon the acts of the trustee including the exercise of discretionary powers, and proceedings to instruct the trustee. (Prob. Code, § 17200, subd. (b)(5), (6).) A notice of appeal must be liberally construed in favor of its sufficiency. (Forsyth v. Jones (1997) 57 Cal.App.4th 776, 780.) Although the August 31, 2006 minute order is nonappealable, the September 20, 2006 formal order for first and final accounting by the trustee is appealable and we will deem the appeal to be taken from the latter order.
On appeal appellant first asserts that the trial court denied her due process of law by refusing her an evidentiary hearing as to her objections to the first and final account and instead resolving the issues on the pleadings. Appellant next asserts that the trial court erroneously approved an inherently flawed accounting. We will agree with appellant as to the first issue, reverse and remand for appropriate hearing and for such reason, find it unnecessary to at this time address the second issue.
STATEMENT OF FACTS
A. Facts Underlying the Trust Agreement
Respondent F. Michael Noriega (trustee or respondent trustee) and Monte Holcomb Paul Evetts (respondent Evetts) agree with appellant’s recitation of the facts regarding the trust agreement.
On February 15, 1996, Holcomb Evetts and his wife, Alma, executed the Holcomb and Alma Evetts Revocable Family Trust Agreement (trust agreement). Mr. and Mrs. Evetts had three children: appellant Tonja Ann Evetts Pearce, respondent Monte Holcomb Paul Evetts, and Charlene Jespersen (not a party to the instant appeal). Alma Evetts died on July 23, 2001. Upon her death the trust agreement required Holcomb to divide the trust estate into three separate trusts -- the survivor’s trust, the QTIP trust, and the residual trust. Holcomb had a power of appointment over the survivor’s trust but the QTIP and residual trusts were irrevocable. Holcomb died on March 7, 2003, and respondent F. Michael Noriega became the successor trustee.
The trust required the payment of debts, costs, and taxes be made first from the principal of the survivor’s trust and, upon its exhaustion, from the QTIP and then from the residual trust. The trust agreement further required the successor trustee to use the corpus of the QTIP trust to pay estate, inheritance, or other death taxes attributable to the trust estate of the QTIP trust being included in Holcomb’s gross estate for federal estate and state death tax purposes. The agreement also provided that all payments were to be made from the nonexempt QTIP trust unless it was exhausted, in which case the successor trustee was to pay the taxes from the exempt QTIP trust. The agreement instructed the successor trustee to add to the residual trust any remaining portion of the QTIP trust. The agreement instructed the successor trustee, after payment of taxes, to distribute the survivor’s and residual trusts among the three children and a granddaughter of the settlors. In his will, Holcomb directed that all federal income and estate tax and state death taxes be paid out of the residue of his estate and not be deducted or collected from any beneficiary.
Under the trust agreement, appellant was to receive, among other things, all cash assets of the trust estate of the survivor’s trust and/or the residual trust. Respondent Evetts (the Monte Holcomb Paul Evetts Irrevocable Trust) was to receive, all of the corporate stock of the Evetts family business, Overland Stock Yards.
B. Trustee Noriega’s Petition for First and Final Accounting
On April 29, 2005, trustee Noriega filed a first and final accounting and petition for allowance of attorney fees and costs. The accounting did not reflect the allocation of trust assets among the survivor’s trust, QTIP trust, and residual trust. An attachment to the accounting listed assets on hand as of August 31, 2004. The assets included three promissory notes executed by the Monte Holcomb Paul Evetts Irrevocable Trust dated February 14, 2003, with interest at 4.51 percent per annum. One note was in the principal sum of $814,031, the second note was in the principal sum of $691,927, and the third note was in the principal sum of $136,527. These notes had a combined total face value of $1,642,485. The accounting explained these assets in the following manner:
“Pursuant to paragraph 4(a)(5) Monte Holcomb Paul Evetts, is to receive all corporate stock of Overland Stockyards, a California corporation, which is part of the Trust Estate of the Survivor’s Trust and/or the Residual Trust, which ever is applicable, to be held in trust for the benefit of Monte Holcomb Paul Evetts in accordance with paragraph 4(c) of this Trust. Paragraph 4(c) of Article 9 provides that the stock in Overland Stockyards shall be retained and administered by a trustee in a separate trust for the benefit of Monte Holcomb Paul Evetts. The Monte Holcomb Paul Evetts Irrevocable Trust was formed on February 3, 2003 at a time when the Original Trustor [Holcomb Evetts] was still surviving. Original Trustor sold the Overland Stockyards’ stock to the Monte Holcomb Paul Evetts Irrevocable Trust during his lifetime and took back promissory notes as payment for the purchase price. These promissory notes are listed as Items 4, 5, and 6 on the schedule showing assets on hand as of March 7, 2003. As called for in Article 9 of the Trust all of the corporate stock of Overland Stockyards was to be distributed to a trust for the benefit of Monte Holcomb Paul Evetts. Because this event had taken place prior to the Original Trustor’s death, the promissory notes will be distributed to the Monte Holcomb Paul Evetts Irrevocable Trust.”
The promissory note in the principal sum of $136,527 was signed by Michael F. Noriega, as trustee of the Monte Holcomb Paul Evetts Irrevocable Trust and countersigned by Holcomb Evetts as trustee of the Holcomb Evetts survivor’s trust. The promissory note in the principal sum of $691,927 was signed by Michael F. Noriega, as trustee of the Monte Holcomb Paul Evetts Irrevocable Trust and countersigned by Holcomb Evetts as trustee of the Alma Evetts QTIP trust. A promissory note in the principal sum of $814,031 was signed by Michael F. Noriega, as trustee of the Monte Holcomb Paul Evetts Irrevocable Trust and countersigned by Holcomb Evetts as trustee of the Holcomb Evetts survivor’s trust. Each of the promissory notes contained the following language:
A fourth promissory note in the principal sum of $122,104 was signed by Michael F. Noriega, as trustee of the Monte Holcomb Paul Evetts Irrevocable Trust, and countersigned by Holcomb Evetts as trustee of the Alma Evetts residual trust. Appellant maintains the failure to include that note in the final accounting was harmful to her position as residuary beneficiary. Trustee Noriega maintains: “The fourth promissory note was not included in the accounting because the note was part of the non-taxable Residual Trust, was to be distributed to H.P.’s Trust and would have caused an undue burden and added expense to the Trust Estate.”
“On the date of death of Holcomb Evetts, this Promissory Note shall terminate and the payment of all principal and interest shall be fully and completely forgiven forever, it being the specific intent of the Holder that the indebtedness evidenced by this Promissory Note be fully and completely forgiven on the date of death of Holcomb Evetts.”
The first and final accounting showed payment of $321,702 in federal estate taxes, $44,279 in California estate taxes, and $10,054 in income taxes. The proposed cash distribution to appellant, after payment of attorney fees and costs, trustee’s fees and trustee’s advances, was $17,107. Appellant filed written objections to the first and final accounting on June 14, 2005. She alleged, among other things, that trustee Noriega failed to properly allocate the trust assets under the terms of the trust and the terms of the Probate Code. She further alleged he improperly charged expenses and estate tax liability against appellant’s cash bequest. At the September 7, 2005 hearing, counsel for trustee Noriega advised the court that there was a dispute between appellant and respondent Evetts as to whether the cash bequest to appellant under the trust was a specific or general gift. Counsel proposed filing a petition for instructions on this issue.
On February 2, 2006, the court noted there were two petitions on file — petition for instructions and the petition for the first and final accounting. The court advised counsel the clerk had reviewed the petitions and recommended the matter be set over for a continued hearing on March 2, 2006. Appellant’s counsel inquired about the amount of time available for the March 2 hearing because he intended to examine the trustee and had served a notice to appear upon the trustee. Appellant’s counsel estimated that the trustee’s testimony would take one hour and argument and objections would take at least another hour. The court ordered the matter continued to March 2, 2006, and noted appellant’s two-hour estimate for the hearing.
On March 2, 2006, the court called the matter on the morning calendar. Appellant’s counsel restated his two-hour estimate for the proceeding. The court trailed the matter for approximately one hour while it took care of other matters on the calendar. After the case was recalled, the court addressed whether a hearing could proceed on the accounting. The court noted there were several procedural problems with the accounting. Appellant’s counsel indicated he was never advised there were any procedural problems with the accounting. Counsel further indicated he was prepared to try the issues pertaining to the accounting and pertaining to the petition for instructions. He explained both matters were interrelated and his examination of the trustee would deal with both matters. Counsel suggested the court first proceed with appellant’s objections to the accounting. Counsel indicated if the court sustained the objections and ordered the trustee to amend the accounting, appellant might withdraw her response to the petition for instructions. The court advised appellant’s counsel that it was “no fault of [his] that we’re not ready to proceed at this time.” Nevertheless, the court proceeded to hear only the petition for instructions.
Invoking Probate Code section 1022, appellant’s counsel objected to the declaration of Charlene Jespersen (sibling of appellant and respondent Evetts) concerning the trustors’ intent. After an extended discussion and review of cases, respondents’ counsel acknowledged that affidavits and verified petitions can only be considered as evidence in uncontested probate proceedings. The court thereupon sustained appellant’s objection and granted her motion to strike Charlene Jespersen’s declaration.
At the hearing on petition for instructions, appellant’s counsel argued the accounting was fundamentally flawed. Counsel outlined certain testimony he anticipated to elicit from the trustee during the hearing on that petition. When the court expressed concern that this would be “getting into the accounting,” counsel for the trustee agreed: “[W]e’ll deal with that when we get to those objections. That matter will be heard.…” Counsel for the trustee assured the court he would make the trustee available for hearing on the objections. Respondent Evetts’s counsel also thought a hearing on the accounting was premature. Counsel for respondent Evetts indicated appellant’s counsel could come back and raise the argument about the accounting once the court determined whether the bequest to appellant was general or specific. At the conclusion of the hearing, the court took the petition for instructions under submission and tentatively set April 27, 2006, as the date for hearing objections on the accounting.
On March 17, 2006, the court filed a minute order and ruling concluding that the settlors of the trust intended article Ninth, paragraph 4(a)(4) to be a general gift to appellant. On April 13, 2006, the trustee filed a second supplement and amendment to the accounting to bring the accounting up to date. The updated accounting showed the trust estate had a deficit of almost $30,000, with no proposed distribution to appellant. On April 26, 2006, appellant filed her supplemental objection to the updated accounting.
On May 26, 2006, the trustee filed a written reply to appellant’s supplemental objection. The trustee attached to the reply a copy of the fourth promissory note dated February 14, 2003, made by the Monte Holcomb Paul Evetts Irrevocable Trust in the face amount of $122,104 and payable to the residual trust. On June 13, 2006, appellant took respondent trustee’s deposition. At the deposition, the trustee confirmed the fourth promissory note was an asset of the residual trust. Nevertheless, this promissory note was not included in the initial or updated accounting or in the federal estate tax return. The accounting also failed to list a number of horses that belonged to the trust but were in the possession of one or more of the trust beneficiaries. On June 14, 2006, appellant filed a second supplemental objection to point out these deficiencies in the accounting.
The court continued the April 27, 2006 hearing to August 10, 2006. The matter came on for hearing on August 10 before the Honorable Louie Vega, probate commissioner of the superior court. The court noted appellant’s two-hour time estimate and respondent Evetts’s attorney noted that was the estimate given on their previous appearance in court. At the prior appearance, counsel mentioned that both matters were on calendar and that appellant’s counsel had given the estimate out of an abundance of caution because he had not yet taken the trustee’s deposition. Respondent Evetts’s counsel advised the court that appellant’s counsel had taken a five-hour deposition of the trustee since the prior proceeding. Therefore, respondent Evetts’s attorney thought appellant’s attorney would have a very focused examination. Respondent Evetts’s counsel also reminded the court that the parties were back in court for the sixth time. The trustee’s counsel told the court that the estate was in a deficit and he could not see the hearing taking more than one-half hour at that point.
Appellant’s counsel disagreed, advised the court he could condense the trustee’s testimony to about an hour in front of the court, and further advised the court that he had an expert witness who was going to take about one-half hour. The court ultimately told appellant’s counsel that it would give him a chance at the end of the calendar to present his position as to why more than a half hour was needed.
When the matter was recalled, appellant’s counsel indicated that he needed more than 30 minutes (“more than two hours”) to present his side of the case. Appellant’s counsel began to summarize appellant’s contentions and the trustee’s deposition testimony for the court. Counsel maintained the accounting omitted certain assets that were included on the federal estate tax return, that the accounting did not account for three different sub-trusts created by the trust agreement, and that the trustee mixed principal and income cash together and did not collect certain interest.
The court asked counsel what he intended to do if appellant prevailed on her objections and there was no money left in the trust estate. Appellant’s counsel told the court his expert witness was prepared to testify about the valuation of the installment promissory notes in the trust estate. Counsel explained the notes were self-cancelling and their value should have been discounted. Instead, the trustee valued the notes at more than $1.6 million for estate tax purposes and for calculating the trustee’s fees. Both the taxes and fees were paid from the cash in the trust estate that would have gone to appellant. Appellant’s counsel told the court the statute had not yet run on the federal estate tax return and, if the trustee was removed, the tax return could be amended to state the correct value of the assets. According to counsel, an amended return would return money paid for taxes to the estate, thus benefiting appellant as a distributee of the trust. Respondent Evetts’s counsel argued appellant’s attorney had no evidence to establish that position. Appellant’s attorney said, “I have the evidence, your Honor.” Respondent Evetts’s counsel then said, “Everything has been covered in the briefs, and I would respectfully ask the court to rule accordingly.” At that point the court summarily took the matter under submission based upon the pleadings.
On August 31, 2006, the court filed a minute order and ruling overruling “en toto” appellant’s objections and approving the first and final accounting and petition for allowance of attorney fees and costs. On September 20, 2006, the court filed a formal order for first and final accounting.
DISCUSSION
Appellant contends she was entitled to an evidentiary hearing and thus the trial court erroneously resolved the matter on the pleadings. She asserts that by denying her such hearing she was denied due process of law.
Probate Code section 1000 states in relevant:
All further statutory references are to the Probate Code unless otherwise indicated.
“Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions … under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code.…”
Section 1022 states:
“An affidavit or verified petition shall be received as evidence when offered in an uncontested proceeding under this code.”
Section 17000 states:
“(a) The superior court having jurisdiction over the trust pursuant to this part has exclusive jurisdiction of proceedings concerning the internal affairs of trusts.”
Section 17001 states:
“In proceedings commenced pursuant to this division, the court is a court of general jurisdiction and has all the powers of the superior court.”
Section 17200 states in relevant part:
“(a) ...[A] trustee or beneficiary of a trust may petition the court under this chapter concerning the internal affairs of the trust ....
“(b) Proceedings concerning the internal affairs of a trust include, but are not limited to, proceedings for any of the following purposes: [¶] ... [¶]
“(5) Settling the accounts and passing upon the acts of the trustee, including the exercise of discretionary powers.”
With respect to evidentiary hearings, one scholarly treatise observes: “Local probate rules do not say as much, but short matters on probate calendars often are heard without oral testimony. The ‘evidence’ consists of the verified pleadings and any additional affidavits or declarations under penalty of perjury filed with the court. Despite the fact that Prob C §1022 only directs the use of affidavits and petitions as evidence in uncontested proceedings, the procedure is valid in the absence of objections.” (1 Cal. Trust and Probate Litigation (Cont.Ed.Bar. 2007) § 10.39, p. 265.)
In Evangelho v. Presoto (1998) 67 Cal.App.4th 615 (Evangelho), the appellant and the respondents were children of decedent Joan D. Evangelho. A consolidated appeal arose from two superior court orders which required the appellant to file a full accounting for a revocable living trust set up by decedent for the benefit of all her children. Among many contentions, the appellant argued there were no factual basis for the trial court’s orders. Division 4 of the Court of Appeal, First Appellate District, concluded this lacked merit, stating:
“No witnesses gave testimony and no documents were formally introduced into evidence in the present case. The factual record submitted for the appeal consists of the trust documents; respondents’ verified petitions; statements in appellant’s unsworn, unverified opposition memoranda; appellant’s durable power of attorney for decedent; oral representations by counsel; a bank statement; canceled checks; and a declaration of respondent John M. Evangelho.
“Probate Code section 1002 provides, ‘[a]n affidavit or verified petition shall be received as evidence when offered in an uncontested proceeding under this code.’ Thus when challenged in a lower court, affidavits and verified petitions may not be considered as evidence at a contested probate hearing. (Estate of Wallace (1977) 74 Cal.App.3d 196, 200-201; Estate of Duncan (1969) 1 Cal.App.3d 212, 215.)
“‘However, where the parties do not object to the use of affidavits in evidence, and where both parties adopt that means of supporting their positions, the parties cannot question the propriety of the procedure on appeal. [Citation.] … The trustee’s petition and [the objector’s] written objections were both verified in the form of declarations under the penalty of perjury. [Citation.] Absent an objection, these documents were properly considered as evidence. [Citations.]’ (Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1088; Estate of Fraysher (1956) 47 Cal.2d 131, 134-135.)
“Statements of fact in unsworn, unverified memoranda can also be properly considered as evidence in the absence of objections. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 359.)…
“In the present case, both parties submitted the trust documents and some cancelled checks as exhibits to support their respective positions. Neither party objected to any of the factual statements presented by the other and neither proffered, or mentioned the need for oral testimony or formal introduction of exhibits. The arguments at the trial court hearing, cited by appellant as ‘clear and timely objections’ that ‘the evidence was incompetent,’ refer to the standard of proof required and are not objections to the type of evidence before the trial court. Accordingly, the documents submitted as the appellate record are proper ‘evidence’ in each of the two proceedings … which constitute the consolidated appeal.” (Evangelho, supra, 67 Cal.App.4th at pp. 620-621.)
If counsel intends to demand a full evidentiary hearing, he or she should consult local probate rules and court personnel regarding the procedure for requesting a hearing time, and give the court and opposing counsel advance notice of the fact that the request will be made. (1 Cal. Trust and Probate Litigation, supra, § 10.39, pp. 265-266.) Rules governing probate and trusts in the Uniform Rules of Court, Superior Court of Kern County, do not specifically address the concept of a contested hearing in a trust setting. Nevertheless, the clear implication of Evangelho is that the superior court, sitting in probate, cannot make a determination only upon the affidavits and petitions on file where the proceedings are contested or a party interposes objections. Both respondents maintain that section 11002 vests the superior court with discretion to decide whether a hearing is necessary on a matter to settle an account. Section 11002 states:
“(a) The court may conduct any hearing that may be necessary to settle the account, and may cite the personal representative to appear before the court for examination.
“(b) The court may appoint one or more referees to examine the account and make a report on the account, subject to confirmation by the court. The court may allow a reasonable compensation to the referee to be paid out of the estate.
“(c) The court may make any orders that the court deems necessary to effectuate the provisions of this section.”
On appeal, respondent Evetts submits that Commissioner Vega concluded an evidentiary hearing was unnecessary because appellant previously submitted four briefs on the same objections she sought to assert on August 10, 2006. In respondent Evetts’s view, Commissioner Vega was simply exercising his discretion under section 11002 in not conducting a hearing he apparently felt was unnecessary. Respondent trustee submits the court was not obligated to conduct an evidentiary hearing necessary to settle the account even though the accounting was contested. He submits the court was simply exercising its discretion, as authorized under the Probate Code, in not conducting an additional hearing that would have “added little or no additional useful information.”
As appellant points out, section 11002 does not apply here. Section 11002 applies to the settlement of accounts in the course of the administration of a decedent’s estate. Section 11002 is set forth in Probate Code, division 7, part 8, chapter 3. The instant proceeding concerns the administration of a trust and is governed by division 9, part 5, chapter 3 of the Probate Code. In In Estate of Fraysher, supra, 47 Cal.2d at page 135, the Supreme Court observed “there appears to be no statutory provision authorizing the substitution of affidavits for oral evidence in a contested probate proceeding such as this.” The Supreme Court’s point is equally applicable to the trust litigation in the instant case.
Respondent trustee insists appellant had filed and presented four pleadings prior to the August 10, 2006 hearing and had the opportunity to make oral arguments on the exact same points as presented in her pleadings. Respondent trustee contends the court exercised proper judicial authority when it took the case under submission based on appellant’s pleadings and oral arguments and the trustee’s petitions and oral arguments. Division Three of the Court of Appeal, Second Appellate District, aptly stated a half century ago:
“… To judge in a contested proceeding implies the hearing of evidence from both sides in open court, a comparison of the merits of the evidence of each side, a conclusion from the evidence of where the truth lies, application of the appropriate laws to the facts found, and the rendition of a judgment accordingly.” (Estate of Buchman (1954) 123 Cal.App.2d 546, 560.)
Here, appellant did not acquiesce to the trial court’s determination of the case on the pleadings. Because the proceeding was contested, the trial court had no discretion to deny appellant the opportunity to introduce evidence in open court to establish her case. Although respondent trustee insists “an additional evidentiary hearing in this matter would not have changed the outcome,” the power vested in a judge is to hear and determine, not to determine without hearing. (See Estate of Buchman, supra, 123 Cal.App.2d at p. 560.) The court committed reversible error by failing to conduct a contested evidentiary hearing in open court in the instant matter and reversal is required.
Both respondents contend an appellate court will reverse only for prejudicial error. They cite Code of Civil Procedure section 475, which states in relevant part:
DISPOSITION
The judgment (the order for first and final accounting by the trustee of the Holcomb and Alma Evetts Revocable Family Trust and petition for allowance of attorney fees and costs and trustee’s fees filed September 20, 2006) is reversed and the matter is remanded to the trial court for further proceedings in accordance with the views expressed herein. Costs on appeal to appellant.
WE CONCUR: HILL, J., KANE, J.
“The court must, in every stage of an action, disregard any error ... which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment ... shall be reversed … unless it shall appear from the record that such error ... was prejudicial, and also that by reason of such error ... the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error … had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.”
Respondent trustee, in particular, maintains a prejudicial error will be declared only when the appellate court, after examining all of the facts and evidence of the case, is of the opinion an outcome more favorable to the appealing party would have been reached absent the error. A miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable a result more favorable to the appealing party would have been reached in the absence of the error. (Neilsen v. Uyechi (1959) 172 Cal.App.2d 508, 515.) In other words, we are not to look to the particular ruling complained of in isolation, but rather must consider the full record in deciding whether a judgment should be set aside. (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) Without a full record, an appellate court cannot determine whether a claimed error resulted in a miscarriage of justice. (C.H. Duell v. Metro-Goldwyn-Mayer Corp. (1932) 128 Cal.App. 376, 378.)
In the instant case, we simply do not have a full record because appellant was denied the opportunity to call witnesses and present additional documentary evidence at a contested hearing. In view of these unique circumstances, the respondents’ reliance on Code of Civil Procedure section 475 is misplaced.