Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RP-05-216435
Dondero, J.
In these consolidated appeals, appellants Maxine Willis Ussery (Maxine) and Raymond Willis (Raymond) (collectively referred to as appellants) appeal from the trial court’s order issued after a posttrial compliance hearing, and the subsequent order appointing a third party as the temporary managing trustee of the Ananias Willis Revocable Trust (Trust). We affirm both orders.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Trust was created on January 15, 1987. Ananias Willis died on June 17, 2002. Upon his death, his five adult children became cotrustees of the Trust. The five siblings include the two appellants, Helen McKinnely (Helen), Shirley Ann Ford (Shirley), and Warner Willis (Warner).
Helen died during the proceedings.
On June 7, 2005, appellants, together with Warner, filed a petition to remove Helen and Shirley as cotrustees. At trial, the three petitioning siblings were represented by attorney George Holland.
We refer to the parties by their first names, in the interest of clarity.
On May 23, 2007, after six days of trial, the trial court filed its statement of decision. The court denied the petition to remove Helen and Shirley as cotrustees but found that the two sisters should not serve as managing cotrustees. The court named Warner as the sole managing cotrustee, and ordered Helen to turn over all trust assets, books, and records to him by April 26, 2007.
On August 7, 2007, Warner substituted attorney Maria Lawless for Holland, as his own counsel. Warner also filed an ex parte application for hearing on a petition for instructions. In the petition, Warner alleged that his efforts to perform as the sole managing cotrustee were being thwarted by Maxine, Raymond, and Holland. The parties reportedly were in disagreement as to whether the court had intended to give Warner exclusive authority to manage the Trust. The trial court rejected the application, on the ground that the hearing had to be requested by noticed motion.
On August 28, 2007, Warner filed a notice of hearing on his petition for instructions. The hearing date was stated as September 12, 2007.
On September 11, 2007, Maxine and Raymond, still represented by Holland, filed an objection to Warner’s petition. They alleged that Probate Code section 17203, subdivision (a) requires 30 days’ notice before the hearing date, and that Warner’s notice was deficient in that it had been served only 15 days prior to the hearing date. They requested the matter be dismissed or continued for 30 days.
A hearing was held on September 12, 2007. According to the minutes, the matter was on calendar to “clarify” the trial court’s statement of decision that had been filed on May 23, 2007.
On September 20, 2007, the trial court filed its order after hearing. The order affirms the May 23, 2007 statement of decision giving Warner “full and complete authority over any and all administrative and managerial powers pertaining to the Trust.” The parties were ordered to turn over all Trust assets, documents and items to Warner and to refrain from taking any actions that would improperly impinge upon Warner’s ability to perform his duties.
The September 20, 2007, order states that the statement of decision was dated May 5, 2007. This appears to be an error. The register of actions does not show any document as having been filed or entered on May 5, 2007.
On September 28, 2007, appellants filed a notice of appeal of the September 20th order.
Appeal No. A119259.
On April 4, 2008, Warner filed a petition for temporary appointment of an independent trustee and to compel an accounting of trust assets by Raymond and Maxine.
On April 29, 2008, appellants filed an objection to the petition and a request for a 120-day continuance to seek new counsel. The request was denied.
On May 16, 2008, the trial court filed its order appointing an independent fiduciary to serve as temporary successor trustee of the Trust.
On July 15, 2008, appellants filed a notice of appeal of the May 16, 2008 order.
Appeal No. A122822.
On November 24, 2008, we granted appellants’ motion to consolidate the two appeals.
DISCUSSION
I. Standard of Review
We review both of the contested orders under the abuse of discretion standard. “ ‘In view of the varied nature of the matters which may be freely brought before the probate court by the use of a petition for instructions, the action of the court with respect thereto should be upheld in the absence of an abuse of discretion.’ [Citation.]” (Estate of Denton (1971) 17 Cal.App.3d 1070, 1075.)
Additionally, “The decision to grant or deny a continuance is committed to the sound discretion of the trial court. [Citation.] The trial court’s exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court. [Citation.] A reviewing court may not disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing in the record. [Citation.] The burden rests on the complaining party to demonstrate from the record that such an abuse has occurred.” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984–985.)
II. No Abuse of Discretion in Shortened Notice Period
Appellants claim the trial court abused its discretion in ruling on Warner’s untimely petition for instructions. We are not persuaded.
Appellants rely on Probate Code section 17203, which provides, in part: “(a) At least 30 days before the time set for the hearing on the petition, the petitioner shall cause notice of hearing to be mailed to all of the following persons:
“(1) All trustees.
“(2) All beneficiaries....
“(3) The Attorney General, if the petition relates to a charitable trust subject to the jurisdiction of the Attorney General.
“(b) At least 30 days before the time set for hearing on the petition, the petitioner shall cause notice of the hearing and a copy of the petition to be served... on any person, other than a trustee or beneficiary, whose right, title, or interest would be affected by the petition and who does not receive notice pursuant to subdivision (a). The court may not shorten the time for giving notice under this subdivision.” (Italics added.)
Appellants rely on the last sentence of section 17203, subdivision (b), in arguing that the court abused its discretion by shortening notice. That subdivision does not apply to the present case as, by its terms, it applies only to notice given to persons other than the trustees or beneficiaries.
Preliminarily, it does not appear that the court actually ruled on Warner’s petition at the September 12, 2007 hearing. At the hearing, the parties discussed the issue of whether he had provided insufficient notice. Petitioner’s counsel asked that the hearing be continued due to the short notice. Warner’s counsel stated that after the ex parte motion had been denied, she had contacted the court to try to set a noticed hearing but was told that the court would not be able to set the hearing until October or November. She then decided to defer until the scheduled review and compliance hearing that was held on August 21, 2007. The compliance hearing did not resolve the outstanding issues, and the court continued the hearing to September 12, 2007. Because she was uncertain as to what matters would be addressed at the hearing, the attorney then decided to file Warner’s petition for instructions using the September 12th date. After hearing this explanation, the trial court concluded that the petition was not before the court because it had not been filed with a true hearing date. Accordingly, as the court did not rule on Warner’s petition, appellants’ argument regarding the allegedly short notice is inapposite.
We also note that appellants were not unduly surprised by Warner’s contentions because their attorneys were already aware that a hearing would be held on September 12, 2007, and that the scope of Warner’s authority to administer the trust would likely be discussed. Because they were already aware of pertinent details of the proposed petition for instructions, they had the necessary information upon which to base any objections to the petition.
On appeal, they assert an additional two weeks would have made a difference in their ability to formulate a substantive response to Warner’s petition because they would have been able to obtain the transcript of the March 12, 2007 hearing so as to read back to the court the comments it had made regarding the function of the managing cotrustee. The contend they “should have been afforded the opportunity to submit arguments to the court regarding the whole purpose of trial which was... to prevent one person from acting alone and committing waste of Trust assets....” Our review of the March 12, 2007 hearing reveals that Holland asked for the relevant portion of the transcript to help him prepare the proposed statement of decision, and that the court reporter agreed to provide it. It thus would appear that appellants already had a copy of this transcript prior to the September 12th hearing. In any event, they were present during the trial and therefore were in a position to make arguments concerning their understanding of the court’s prior order.
Even if the court did rule on the petition, and err in doing so, we would find the error harmless. We note error alone does not warrant reversal. “ ‘Injury is not presumed from error, but injury must appear affirmatively upon the [appellate] court’s examination of the entire record.’ [Citation.] ‘Only when an error has resulted in a miscarriage of justice will it be deemed to be prejudicial so as to require reversal.’ [Citation.] A miscarriage of justice is not found ‘unless it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result.’ [Citation.]” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822–823.)
In our view, the trial court simply reiterated its understanding of its prior ruling: “Let me clarify the – there is no doubt in my mind – and unfortunately, there is potentially some doubt in the language, though, of the, of the [prior] order, but there is no doubt in my mind that Warner Willis was to be the controlling, decision-making trustee in this trust. His decision carries the day. He also has the responsibility under the trust and the potential liability.” The court’s conclusions are entirely consistent with its May 2007 statement of decision. It is thus not reasonably probable that a different result would have been obtained absent the alleged error. Accordingly, the order dated September 20, 2007, is affirmed.
III. Denial of Continuance
Appellants claim the trail court erred in denying their request for a 120-day continuance before granting Warner’s request to appoint the independent managing trustee. They claim they needed time to obtain new counsel because Holland had a conflict of interest in that he had previously represented Warner and appellants. This conflict allegedly prevented Holland from disclosing information regarding Warner’s motives to the court as the disclosure would have amounted to a breach of Holland’s fiduciary duty. They also claim a continuance was necessary because appellants could not attend the hearing due to the recent death of their sister Helen. We find no error.
Probate Code section 1045 provides: “The court may continue or postpone any hearing, from time to time, in the interest of justice.” Additionally, the California Rules of Court, rule 3.1332(c)(4), provides that continuances may be granted for substitution of trial counsel, “but only where there is an affirmative showing that the substitution is required in the interests of justice.” As courts have observed, “there is no policy in this state of indulgence or liberality in favor of parties seeking continuances.” (County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 781.)
At the May 6, 2008 hearing, the trial court noted that four months earlier, on January 15, 2008, it had denied Warner’s motion to disqualify Holland on the basis of his prior representation, finding that the motion lacked merit. In the opposition to Warner’s motion, Holland had stated that Warner “never revealed any confidential information about himself or the case against [Helen and Shirley] to the law firm.... Counsel never obtained any information from [Warner] to be used against him. Any information obtained about [Warner] came from [appellants, Maxine and Raymond].” As Holland did not allege that he had obtained any new information regarding Warner subsequent to the court’s ruling on the disqualification petition, it was reasonable for the court to conclude that Holland’s prior relationship with Warner did not present a conflict of interest. We also note that Holland, on behalf of appellants, strongly objected to the appointment of the independent trustee. Thus, their position was made known at the hearing even though they did not personally appear. In sum, the court did not abuse its discretion in denying appellants’ request for a continuance.
DISPOSITION
The orders are affirmed.
We concur: Marchiano, P. J., Margulies, J.