Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BP065024, Aviva K. Bobb, Judge.
Oldman, Cooley, Sallus, Gold, Birnberg & Coleman, Marshal A. Oldman, James R. Birnberg and Susan R. Izenstark for Defendant and Appellant.
Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg, Joel E. Boxer and Dorothy Wolpert for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
This appeal involves a dispute over a proposed order arising out of litigation involving three trusts. The first trust is the Caldwell Family Trust dated October 30, 1969, as amended and restated on October 25, 1980 (the family trust). The second trust is a decedent’s trust created upon the death of a spouse. The third trust is the Caldwell Living Trust dated August 17, 1988, as amended and restated by the Amendment to and Complete Restatement of the Caldwell Living Trust dated July 21, 2000 (the living trust) which contains a no contest clause. Craig Caldwell (Craig) appeals from three probate court orders entered on July 16, 2007: an order confirming the effectiveness of an exercise of a power of appointment; an order conveying title to real property; and an order directing conveyance of personal property to trustee of the living trust. Also, he appeals from a September 12, 2007 order denying his new trial motion. We conclude Craig has no standing to assert in the future any rights to any of the assets in the living trust that were once part of the decedent’s trust. Hence, we dismiss the appeal.
II. BACKGROUND
William M. Caldwell III (William) and Mary E. Caldwell (Mary) created the family trust which was dated October 30, 1969 and amended on October 25, 1980. (We refer to the Caldwell family members by their first names for purposes of clarity.) Pursuant to the family trust instrument, on the death of either spouse, a decedent’s trust was created. The surviving spouse was to be the income beneficiary of the decedent’s trust with a limited right to invade the principal. Article 4(c) of the family trust instrument granted a power of appointment to the surviving spouse with respect to the decedent’s trust’s assets as follows: “Upon the death of the Survivor, he or she shall have the power to appoint the principal and any undistributed income of the trust estate, or any part thereof, without regard to equality of distribution, to or among one or more or all of the Decedent’s issue then living, or to a trust or trusts for their benefit. Such power of appointment shall be exercised only by a provision in the last will of the Survivor expressly exercising such power.”
Mary predeceased William. Mary died on December 8, 1980. Hence, William became the income beneficiary of the decedent’s trust with the stated power of appointment. Following Mary’s death, William created the living trust dated August 17, 1988, which was later amended and restated effective July 21, 2000. The living trust instrument included a no contest clause. On December 20, 2006, we affirmed a probate court finding Craig had violated the no contest clause of the living trust and forfeited his interest in its assets. (Ross v. Caldwell (Dec. 20, 2006, B189273 [nonpub. opn.].) That decision is final.
The no contest clause states: “If any person, who is or claims under or through a beneficiary of this trust, in any manner whatsoever, directly or indirectly, contests or attacks this trust or my Will or performs any act that would frustrate the dispositive plan contemplated in this trust and my Will or conspires or cooperates with anyone attempting to contest, attack, or frustrate this trust or my Will (an ‘objector’), then in that event I specifically disinherit each such objector, and any portion of the trust estate not disposed of under the foregoing provisions of this trust shall be distributed to the other trust beneficiaries, excluding all objectors and all persons conspiring with or voluntarily assisting any objector; provided, however, that a petition, made in good faith and not opposed by the Trustee, seeking an interpretation of this trust or my Will shall not be considered a contest of, an attack on, or an attempt to frustrate the dispositive plan of this trust and my Will.”
William died on September 24, 2000. He was survived by three adult children: William M. Caldwell IV (Bill); Candace L. Caldwell Smith (Candace); and Craig. Williams’s will was admitted to probate on March 20, 2001. (Estate of William M. Caldwell, III, (Super.Ct. L.A. County 2001, No. BP065645.) The will contained the following provision exercising the power of appointment with respect to the decedent’s trust’s assets: “I have a testamentary special power of appointment granted to me in paragraph (c) of Article 4 of that certain trust known as the Caldwell Family Trust dated October 30, 1969, as amended and restated in full on October 25, 1980, with respect to assets allocated to the Decedent’s Trust thereunder . . . . I intend in this Will and the Caldwell Living Trust . . . to provide a distribution plan for the assets in my estate, the Living Trust and the Caldwell Decedent’s Trust in a manner that will further the effective management of certain business interests held in my estate, the Living Trust, and the Caldwell Decedent’s Trust. Therefore, I hereby exercise said power of appointment by directing the Trustee of the Caldwell Decedent’s Trust to distribute all property subject to my said power of appointment, in trust, to the Trustee of the Living Trust, and to [be] added to the balance of the Living Trust disposed of pursuant to Article VI of Section A of the Living Trust. In exercising said power of appointment, I do not intend to subject the assets hereby appointed to administration in my probate estate, nor shall the assets hereby appointed bear any of my debts or any taxes or expenses arising from my death.” (Italics added.) Section A, article VI of the living trust instrument directed that the balance of the trust estate be divided into shares for William’s surviving descendants according to the principle of representation.
On March 21, 2007, the probate court had before it three petitions in the present case, which concerns the living trust: first, a petition by the former and current trustees of the living trust, James E. Cox and Edward M. Ross, respectively, for an order directing the trustee of the decedent’s trust, Ted E. Davis, to convey real and personal property to Mr. Ross as trustee of the living trust; second, a petition by Mr. Davis as trustee of the decedent’s trust for an order determining interests in property; and third, a petition by Candace for an order construing powers of appointment. (Those petitions have not been included in the record on appeal.) Candace, Bill, Mr. Davis, as trustee of the decedent’s trust, and Mr. Ross, as trustee of the living trust, stipulated to grant the first petition directing conveyance and to withdraw the remaining matters. Craig was represented at the hearing on the petitions but was not a party to the stipulation.
On June 14, 2007, Mr. Ross served a proposed order. On June 15, 2007, Craig filed objections to the proposed order. These objections are the subject of the present appeal. Craig argued the order should include the specific terms of the special power of appointment as set forth in the family trust instrument and the wording of William’s exercise of that power. Specifically as to the latter point, Craig sought to change paragraph 4 of the proposed order to state that the decedent’s trust’s assets be distributed “in accordance with Article VI, Section A of the Caldwell Living Trust,” rather than, “in accordance with the terms of” the living trust as specified in Mr. Ross’s proposed order. On July 16, 2007, the probate court issued the order confirming the effectiveness of the power of appointment and directing conveyance of property without Craig’s requested changes.
The family trust states in part: “Upon the death of the Survivor, he or she shall have the power to appoint the principal and any undistributed income of the trust estate, or any part thereof, without regard to equality of distribution, to or among one or more or all of the Decedent’s issue then living, or to a trust or trusts for their benefit. Such power of appointment shall be exercised only by a provision in the last will of the Survivor expressly exercising such power.”
Wiliams’s will states in part: “I intend in this Will and the Caldwell Living Trust . . . to provide a distribution plan for the assets in my estate, the Living Trust and the Caldwell Decedent’s Trust in a manner that will further the effective management of certain business interests held in my estate, the Living Trust, and the Caldwell Decedent’s Trust. Therefore, I hereby exercise said power of appointment by directing the Trustee of the Caldwell Decedent’s Trust to distribute all property subject to my said power of appointment, in trust, to the Trustee of the Living Trust, and to [be] added to the balance of the Living Trust disposed of pursuant to Article VI of Section A of the Living Trust, [Division And Distribution of Remaining Balance of Trust Estate]. In exercising said power of appointment, I do not intend to subject the assets hereby appointed to administration in my probate estate, nor shall the assets hereby appointed bear any of my debts or any taxes or expenses arising from my death.”
The July 16, 2007 order reads as follows: “Upon reviewing the pleadings and related documents filed herein, and hearing the testimony given at the hearing, [¶] THE COURT FINDS that: [¶] A. All Notices of Hearing required by law have been given. [¶] B. Under the terms of the [decedent’s trust], [William] was given a special testamentary power of appointment exercisable by will admitted to probate. [William] exercised that power of appointment in his Will admitted to probate by Order dated March 20, 2001 . . . . [¶] C. Thus, effective as of the death of [William] on September 24, 2000, all assets of the [decedent’s trust] were effectively appointed, and should now be conveyed and delivered, to [Mr. Ross] as Trustee of the [living trust] pursuant to the Exercise of Power of Appointment. [¶] D. Accordingly, Petition of the Trustee of the [living trust] should be granted and the other matters withdrawn in accordance with the terms of the stipulation described below. [¶] E. [Candace], [Mr. Davis,] as Trustee of the [decedent’s trust], [Bill], and [Mr. Ross,] as Trustee of the [living trust] have entered into a stipulation stated on the record to the Court at the hearing whereby: [¶] . . . [¶] . . . [A]ll of said parties stipulate to the granting of the within Order . . . . [Craig] was not a party to the Stipulation. [¶] NOW, THEREFORE, PURSUANT TO STIPULATION, IT IS ORDERED that: [¶] 1. The Petition of the Trustee of the [living trust] is granted pursuant to the Stipulation as set forth below, and [the other matters are withdrawn]. [¶] . . . [¶] 4. [William’s] Exercise of Power of Appointment, effective as of the death of [William] on September 24, 2000, effectively appointed any and all assets of the [decedent’s trust] to the [living trust], to be held, administered and distributed in accordance with the terms of the [living trust]. [¶] 5. Record title to the following assets, and any other assets now held of record in the name of the Trustee of the [decedent’s trust] is hereby conveyed and transferred to [Mr. Ross], Trustee of the [living trust] . . . .” (Italics added.)
On August 10, 2007, Craig filed a motion for a new trial or to vacate the July 16, 2007 order. Craig argued the order as written, and the failure to include the requested changes, deprived him of his interest under the decedent’s trust or was insufficient to protect his rights. Craig argued his parents did not intend that the decedent’s trust’s assets would be subject to a no contest clause as distinguished from the assets of the living trust. Craig claimed: “[A]s a beneficiary of Mary’s estate, Craig has an interest in the property passing under the special power of appointment expressly stated in William’s Will. Accordingly, Craig is not precluded from these assets under the No Contest Clause in [the living trust].” Craig sought, “[A] new trial; or, alternatively, vacating of the existing order and entering of a new order consistent with the Objections.”
A hearing on the new trial motion was held on September 12, 2007. Craig’s counsel, Marshall A. Oldman, argued in support of the new trial motion. Mr. Oldman asserted the July 16, 2007 order varied from what the petition and the will stated in that the only trust term mentioned in the exercise of the power of appointment was Article VI. Mr. Oldman asserted, “The trustee, in his order, is trying to say all the terms of the Caldwell living trust apply under that exercise of power, and as a result, he’s trying to now say that my client not only forfeited his interest in the Caldwell living trust, he now forfeits his interest in the [decedent’s trust] w[h]ere there never was a . . . no contest clause, no grounds for forfeiture in that trust. And since [William], in his will, was very precise as to what terms of the Caldwell living trust would apply pursuant to this exercise of power of appointment, we merely ask that the order be modified through this new trial motion to add the specific language of what is involved with the exercise of power of appointment, referring to Article [VI] of the living trust, rather than to all the terms of the living trust.” Mr. Oldman continued: “The exercise of the power of appointment . . . was very precise. It was precise because they wanted to avoid anything that might look like a blending of these assets. It is precise to saying the terms of Article [VI] apply to the distribution of these assets. The exercise of power of appointment could have just as easily have said that the no contest clause would apply, but [William] didn’t say that. We have to look at the confines of the documents in front of us and forget the administrative convenience of the trustee who would like to see [Craig] go away and never bother them again. But these assets, [Craig] has an interest in because that’s what his father did and that’s what his mother did, and they can’t change that today post mortem.” At the conclusion of oral argument, the probate court denied Craig’s new trial motion without comment.
III. DISCUSSION
Mr. Ross, as successor trustee of the living trust, argues Craig lacks standing to appeal. Standing to appeal is jurisdictional. (United Investors Life Ins. Co. v. Waddell & Reed, Inc. (2005) 125 Cal.App.4th 1300, 1304; In re Frank L. (2000) 81 Cal.App.4th 700, 703; Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295.) An aggrieved party has standing to appeal. (Code Civ. Proc., § 902; County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.) The Supreme Court has explained: “One is considered ‘aggrieved’ whose rights or interests are injuriously affected by the judgment. [Citations.]” (County of Alameda v. Carleson, supra, 5 Cal.3d at p. 737; accord, Ajida Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th 534, 540.) As noted above, we previously found Craig violated the living trust’s no contest clause and forfeited his interest in assets of that trust. (Ross v. Caldwell, supra, B189273 [nonpub. opn.].) That decision is final. However, Craig sought to vacate the order on appeal or to obtain a new trial based upon an asserted interest in the decedent’s trust’s assets, notwithstanding the no contest clause violation as to the living trust.
We agree that given the precise language in the no contest clause, Craig has no standing to raise the issue he does on appeal. On appeal, he argues that the July 16, 2007 order prevents him in the future from arguing he has any rights to the assets in the decedent’s trust that are now part of the living trust. He has no rights to any assets in the living trust because he violated the no contest clause which extends to the assets in William’s estate. (See fn. 1, supra.) The exercise of the power of appointment resulted in the transfer of the assets in the decedent’s trust to the living trust with its expansive no contest clause.
No doubt, Craig has standing to challenge the July 16, 2007 order conveying the assets from the decedent’s trust which does not have a no contest clause. But that is not what Craig has done. Craig does not challenge that part of the July 16, 2007 order which conveys the decedent’s trust assets to the living trust. And with good reason, no grounds exist to challenge the asset transfer.
Rather, Craig argues the July 16, 2007 order should be modified so in the future he can be permitted to argue that he has an interest in the assets of the decedent’s trust which are now in the living trust. But the assets formerly in the decedent’s trust are now in the living trust and are subject to the no contest clause. Moreover, Craig has failed to articulate in his reply brief any theory under which the no contest clause would not apply to the assets formerly in the decedent’s trust but now in the living trust given the expansive scope of the no contest clause. Our prior holdings that Craig has violated the no contest clause and its effect on the assets in the living trust are entitled to full law of the case and res judicata effect. (People v. Massie (1998) 19 Cal.4th 550, 574, fn. 5 [law of the case]; Grable v. Grable (1960) 180 Cal.App.2d 353, 359 [res judicata].) Craig has no standing to assert the probate court improperly denied him the opportunity to assert in the future rights to assets which are now part of the living trust.
IV. DISPOSITION
The appeal is dismissed. Edward M. Ross, as successor trustee of the Caldwell Living Trust, is to recover his costs on appeal from Craig Caldwell.
We concur: ARMSTRONG, J., KRIEGLER, J.