Opinion
NOT TO BE PUBLISHED
APPEAL and cross-appeal from orders of the Superior Court of San Diego County No. PN29390, Harry L. Powazek, Judge. Affirmed in part as to trust interpretation orders; reversed in part with directions on attorney fee order.
HUFFMAN, Acting P. J.
In this third appeal by petitioner and appellant Van Hazewinkel (Van), concerning issues about beneficiary status under an amended survivor's trust that was part of a family trust established by his late father and mother, Ben and Betty Hazewinkel, Van appeals an order after the second trial in this matter, that was conducted pursuant to the prior decision of this court in Hazewinkel v. Hazewinkel (May 29, 2009, D053321 [nonpub. opn.] (our first prior opinion)). In that 2009 opinion, this court reversed in part the initial order and judgment respecting the parties' disputes about the distribution of the assets of the amended survivor's trust (the trust), and affirmed in part as to the remainder of the issues. On retrial, the probate court examined the record of the previous proceedings and, as directed, took additional testimony, ultimately deciding against Van's position. At all times, Van, as beneficiary and previously as trustee, has resisted the claims of Ben's surviving second wife, objector, respondent and cross-appellant Wanda Hazewinkel (Wanda), to status as a lifetime beneficiary of the amended survivor's trust.
To avoid confusion, we refer to the various parties by their first names.
In Van's current appeal, he contends the probate court erred in its statement of decision and order denying his petition, which sought trustee instructions to deny Wanda's claims to beneficiary status under the survivor's trust. (Prob. Code, § 17200, subd. (b) [allowing relief concerning the internal affairs of a trust, such as: "(1) Determining questions of construction of a trust instrument. [¶]... [¶] (4) Ascertaining beneficiaries... [¶]... [¶] (6) Instructing the trustee"].) Van essentially claims that the plain language of the trust, read in light of the extrinsic evidence allowed to be admitted upon retrial, should have been interpreted to disinherit Wanda. Wanda relies on a different version of the trust amendments, to support the trial court's interpretation of the documents.
In another prior opinion by this court in this matter, Hazewinkel v. Hazewinkel (June 4, 2010, D054657 [nonpub. opn.] (our second prior opinion)), we reversed an order awarding attorney fees to Wanda and allowed further proceedings on fees, which resulted in the denial of Wanda's request for fees, which is the subject of her cross-appeal here. We will discuss that set of issues in part III, post.
In Wanda's cross-appeal, she contends the probate court erred in its related order that denied her request for attorney fees and costs, pursuant to its interpretation of the evidence and the provisions and definitions set forth in Welfare and Institutions Code, § 15600 et seq., the Elder Abuse and Dependent Adult Civil Protection Act (the Elder Abuse Act or Act).) She relies on the Act, sections 15657.5 and 15610.30, as supporting a fees award based on Van's financial abuse toward her, whether he acted as an individual beneficiary-litigant, or as trustee. Alternatively, she contends that the statement of decision omitted essential material findings about the statutory predicate for such an award in light of Van's dual capacity (trustee and beneficiary-litigant), and that reversal is required for further proceedings on that account.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
Van acted as trustee from the time of Ben's death in 2006 until 2008, when the probate court removed him, with the intention of appointing a temporary trustee. (Prob. Code, § 17206.) However, that order was not finalized until 2010, as will be further explained in part II, post.
As we will show, the probate court order denying Van's petition for enforcement of certain trust provisions, which the court alternatively construed as a petition for reformation, is well supported by the evidence and the applicable law, and that portion of the orders will be affirmed. As to Wanda's cross-appeal, we conclude that the order denying her request for statutory fees for alleged financial elder abuse is not supported by any sufficient findings in the statement of decision. Without expressing any opinion about any entitlement to such statutory fees, we reverse the order with directions to conduct further proceedings limited to the fees issues, in accordance with the principles set forth in this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
A. Previous Proceedings and Prior Opinions
Although we need not repeat the basic general facts as set forth in our prior opinions, we have granted Van's request to take judicial notice of the underlying record on which our first prior opinion was issued, and Van has provided portions of that record as part of the current record. (Cal. Rules of Court, rule 8.252(a).) In broad outline, these trust beneficiary issues arose in 2006 when, shortly before Ben died, he had in his capacity as trustor amended the family trust, and individually, filed a petition for legal separation from Wanda. Wanda's response to that petition for separation included her own petition for dissolution, filed weeks before Ben died.
Later, Van, as successor trustee to Ben, filed this trust proceeding under Probate Code section 17200, to seek instructions regarding the claim of Wanda to status as a lifetime beneficiary of the amended survivor's trust. Wanda objected, contending that she was entitled to beneficiary status under the trust. Van was relying on the Fifth Amendment to the trust, made by Ben shortly before he died, while Wanda was relying on the Third Amendment to the trust, made by Ben during their marriage.
Originally, Van also sought an order establishing the trust's ownership of one-half interest in a community Vista residence, pursuant to a certain trust transfer deed executed by Ben shortly before he died in 2006. (Prob. Code, § 850, subd. (a)(3).) We rejected that claim in our first prior opinion, and no issues about the trust transfer deed are directly involved in this decision. In our second prior opinion, we discussed the lack of a basis for a previous fee award to Wanda, arising out of those facts, and returned all attorney fees issues to the probate court. In response, the court denied any award of fees to Wanda, which is the subject of her cross-appeal on her elder abuse claims. (Now see part III, post.)
1. Trust Components Through Second Amendment
In our first prior opinion, this court reversed the judgment for retrial of discrete issues on Wanda's trust beneficiary status. We set out the basic structure of the family trust as follows:
"Ben and Betty Hazewinkel were married for many years and had two sons, Van and William. In 1975, Ben and Betty established the Hazewinkel Family Trust (Family Trust), containing their community property. Upon the death of either husband or wife, their 'initial trust' was to be divided into two trusts designated as the survivor's trust and the decedent's trust. The survivor's trust was originally stated in one particular article of the 1975 family trust; it was revocable and was to be funded by receiving the separate property of the surviving trustor and certain property equal to the tax marital deduction amount, as adjusted in ways not relevant here.
"The decedent's trust was an irrevocable trust, and it was to receive all of the property from the first spouse to die, that was not included in the survivor's trust. Once the surviving spouse died, the survivor's trust assets were to be distributed to a separate children's trust. When the surviving spouse died, his or her will could dispose of the remaining principal and income of the decedent's trust, or those assets would be added to the children's trust. Ben and Betty executed two amendments to the Family Trust that do not affect the issues here.
"In 1982, Betty died, so that Ben became the trustee of the survivor's trust. Her irrevocable decedent's trust was funded with the approximate amount of the marital tax deduction at the time ($225,003.) Although William and Van are its beneficiaries, Ben as the survivor and trustee had the power to appoint or distribute its assets. There are no issues about it on this appeal, as the Third Amendment did not change it."
2. 1994 Third Amendment to Family Trust
"In 1985, Ben married Wanda, a registered nurse who was about 20 years his junior. Wanda had two sons from a previous marriage and two grandchildren (the Armbrusters).
"In 1994, Ben as trustee executed the Third Amendment to the survivor's trust, greatly expanding its provisions. In the Third Amendment, Ben designated Wanda as the successor trustee. The survivor's trust contained only Ben's separate property, although it provided certain benefits for Wanda if Ben predeceased her. The survivor's trust became irrevocable at his death. The Third Amendment contained numerous subarticles and created two new subtrusts (a 'marital trust' and the 'family bypass trust'; arts. V-VI), in addition to retaining the children's trust (art. VII).
"Under the Third Amendment, if Wanda survived Ben, a marital trust was created (art. V), and half of the trust estate would be designated as the marital share (an amount designed to qualify for the marital deductions under federal estate tax law), and the other half would be designated as the 'exemption equivalent share' (remainder after federal estate tax exemption amount; art. IV). These two halves of the estate would go into the marital trust and the family bypass trust, respectively. In addition to the retained children's trust (now designated for the grandchildren only), there was another subtrust, the disclaimer trust, in case the surviving spouse disclaimed any property. (Art. VIII; it is not at issue here.)
"According to the Third Amendment's marital trust, Wanda was entitled to trust income and invasion of principal to preserve her standard of living during her lifetime. Also, she had the right to live in a family home in which the marital trust had an interest, rent free. The trustee would pay a proportional interest (of marital trust ownership) of the mortgage, property taxes, and other homeowners' expenses.
"Regarding the children's trust, the amended article VII provided that upon the surviving spouse's death, Ben's grandchildren and Wanda's grandchildren had a remainder interest in the survivor's trust. In 2003, Ben (and Wanda as successor trustee) executed a fourth amendment to the survivor's trust changing the shares of the two sets of grandchildren's interests, and adding a no contest clause."
5. Fifth Amendment
"By 2005, Ben was 86 years old, in deteriorating health, and was using oxygen and a wheelchair. In September 2005, Ben believed that Wanda had denied him access to a telephone and his personal papers, and he asked a friend for help in leaving the Vista residence and moving into an assisted living facility in order to separate from Wanda. In November of 2005, Ben consulted a family law attorney, Stephen Moore, and retained him to file a dissolution action. Moore referred him to an estate planning attorney, Macgurn, and Ben met with him in December of 2005 and January 2006. According to Macgurn's notes of his interview with Ben, Ben told him he was in the process of getting a divorce from Wanda and wanted to disinherit her. He told Macgurn that he wanted to disinherit his son William, not for a lack of love and affection. The notes show that Ben told Macgurn he already had a tax planning trust, and wanted to amend the trust to change the trustee back to Ben alone, and to give everything to his son Van and those two grandchildren.
"Macgurn sent the information to his legal assistant in Reno, Nevada, to request her to draft the 'Fifth Amendment to Declaration of Trust' (Fifth Amendment). Ben signed it in January 2006. This document begins by revoking the previous provision identifying Wanda as the successor trustee and naming Ben's adult son, Van, as the new successor trustee. The Fifth Amendment stated it amends the 1975 trust as to the survivor's trust 'only, ' and specifically refers to revoking the children's trust article in its entirety and substituting a new article VII. This new children's trust lists its beneficiaries as Van and his two children, share and share alike. The next provision, still within the children's trust heading, reads as follows: 'Trustor has intentionally, and with full knowledge, failed and omitted to provide for Wanda....' It then makes the same statement about not providing for William, adding 'not for lack of love and affection.' The Fifth Amendment then resumes discussion of the children's trust beneficiaries and their education.
"At the end of the Fifth Amendment, its paragraph 4 states that 'in all other respects [the 1975 trust] is approved and of full force and effect.' Therefore, the Fifth Amendment does not expressly state there were any changes to the Third Amendment's articles IV, V and VI, which had created the marital trust and provided Wanda with various benefits, including a life estate in the survivor's trust property upon Ben's death. [¶] On March 9, 2006, Ben filed a petition for legal separation. Wanda responded with a petition for dissolution on April 12, 2006. Ben died shortly thereafter (April 27) and no marital judgment was ever created, as those actions were abated."
The basis of our first prior opinion (now carried out in the retrial that is now on appeal), was to correct the trial court's previous abuse of its discretion in excluding the extrinsic evidence Van offered about the circumstances of the making and amendment of the trust. We noted that the trust was ambiguous regarding Wanda's beneficiary status, and therefore the probate court's interpretation of the trust documents was incomplete, requiring reversal with directions to conduct further proceedings to admit the extrinsic evidence and include it in the interpretation of the trust documents.
B. Retrial of Beneficiary Issues on Remand: Additional Evidence
We briefly outline the retrial proceedings that gave rise to the current appeal and cross-appeal. We first seek to clarify that although Van continues to contend that his petition only presented issues about enforcement of the terms of the Fifth Amendment, the probate court reasonably interpreted his pleadings and presentation as submitting issues of trust reformation as well. We agree with the probate court that it was not possible to read the Fifth Amendment alone, without taking it into context with earlier versions of the survivor's trust, including the Third Amendment under which Wanda was a beneficiary. (Civ. Code, § 3399 [allowing reformation of instruments].)
Pursuant to the directions from our first prior opinion, the probate court held further trial proceedings over several days and correctly admitted into evidence certain extrinsic evidence that had previously been excluded about the intentions of Ben, as trustor, in making the Fifth Amendment to the survivor's trust. Further testimony from Ben's trusts and estate attorney, Richard Macgurn, whose office prepared the Fifth Amendment (among other documents), was admitted, along with testimony from other witnesses, to clarify what they understood about Ben's intentions as trustor. These other percipient witnesses who testified at the retrial included Ben's family law attorney, Stephen Moore, Van, and Wanda. We will summarize that evidence as needed in the discussion portion of this opinion. No cross-petition was filed to seek other affirmative relief.
Among the other documents prepared by Macgurn's office were the trust transfer deed and Ben's January 2006 will, but none of the issues in this appeal arises from those other documents.
In Wanda's objections to Van's petition, she claimed that during the time period Van acted as trustee, particularly from 2008-2010, he withheld trust proceeds from her and took several actions that Wanda argues amounted to financial elder abuse under section 15610.30. Van stopped paying the mortgage on the Vista community residence with trust proceeds that were gained from his own use and rental of its commercial property (Airport Loop). In February 2010, Wanda received notice that the Vista community residence was subject to foreclosure for default under the note and deed of trust, and she submitted trial evidence to that effect. She submitted evidence about her monthly living expenses that she was having difficulty meeting, without any income from the survivor's trust, and she sought an accounting and distribution of trust proceeds from Van as trustee.
The record shows that while the first appeal was pending, the probate court (Judge Cline) ordered that Van be removed as trustee in November 2008, although there was delay in implementing the order, apparently due to a lack of money to pay any replacement. At retrial, Wanda argued those same facts about Van's continuing use of trust assets amounted to Van's violation of the Elder Abuse Act, justifying an attorney fees award to her. More detailed facts regarding the attorney fees and costs issues will be set out separately in our discussion of the cross-appeal (pt. III, post).
C. Tentative Ruling on Trust Beneficiary Issues and Fees Requests;
Objections; Final Statement of Decision
After testimony, admission of exhibits, and argument were completed, Van's petition was resolved against him in the trial court's tentative decision letter in July 2010, upon which Van requested the preparation of a statement of decision. Van's attorney presented a draft to the court, largely duplicating the probate court's tentative decision letter. The court required him to submit it to Wanda's attorney for review. It is not disputed that Wanda's attorney filed two sets of objections, in July and September 2010, but inexplicably, when the probate court signed the statement of decision in November 2010, the court noted in handwriting on the document that "no objections" had been received.
In its tentative decision and statement of decision, the court first took note that it had reviewed the three-volume court file, taken testimony at trial and considered the evidence. The court noted that it was adopting the history of the case as set forth in our first prior opinion, which it deemed to be substantially similar to the evidence presented at retrial, except as to additional testimony provided by Macgurn about his understanding of the transactions.
The court then thoroughly outlined the respective trial positions of the parties, as including efforts by Van to enforce and reform the trust so that the Fifth Amendment was controlling, disinheriting Wanda. Van was relying on the circumstances of Ben leaving the family residence and filing a petition for separation, as supporting an interpretation that the portion of the Fifth Amendment stating that Wanda was not provided for must be controlling.
The court did not find that Ben had been the subject of any undue influence or duress at the time he was executing the trust amendments. No issues about that topic are raised on appeal.
In contrast, Wanda's position was that Ben had continually reassured her that he would continue to take care of her and support her, despite his filing of the petition for separation, and she had access to community bank accounts up until Ben's death. Wanda contended that the Fifth Amendment was vague and unenforceable, such that the Third Amendment should remain in effect.
As explained by the court in its statement of decision, Macgurn provided credible testimony about his belief that he had made legal errors in drafting and executing the Fifth Amendment to the trust, such that Ben's clear intention to disinherit Wanda was being questioned. Macgurn supported Van's request to reform the Fifth Amendment to make it more enforceable. The court also summarized the testimony from other witnesses, including Ben 's family law attorney Moore, Van, and Wanda, as well as her expert witness on damages.
The court then concluded that both parties' positions had reasonable support in the evidence, and that additionally, another interpretation was possible, i.e.: That even though Ben intended to disinherit Wanda, he also believed that the family law courts would continue to support her and give her enforceable rights in their community property. However, no such family law orders were ever made before Ben died. The court then ruled:
"Given the above, ultimately upon weighing the evidence and factors as set forth above and considering the substantial equity arguments as raised by both parties and each party's credible argument, the court cannot find that [Van] has met his burden of proof supporting a reformation of the Fifth Amendment as requested; this, despite the credible testimony of Mr. Macgurn. While [Van's] position may be logical as set forth above, ultimately, the Fifth Amendment to Trust is ambiguous and susceptible to other reasonable interpretations. [¶] Therefore, [Van's] request for reformation/enforcement of the Fifth Amendment is denied, and [Wanda's] interest in [Ben's] property and estate shall be as set forth in the Third Amendment."
The court ordered that further proceedings would be held to address the final orders as to damages and an accounting, at a case management conference to be held six months hence (i.e., in Dec. 2010).
Regarding this damages issue, the record does not reveal what further proceedings were held or what orders made, after the probate court ordered the parties to meet and confer. That does not affect the appealability of the current orders, however. (Prob. Code, § 1300, subd. (c).)
Finally, the court denied Wanda's application for attorney fees under the elder abuse theory (now giving rise to her cross-appeal). (§§ 15657.5, 15610.30.) With respect to whether the predicate conditions for awarding such statutory remedies were satisfied, the court made no findings, instead stating only: "The Court finds that [Van's] position as maintained through these proceedings has been reasonable and appropriate based upon the evidence as presented including, but not limited to, the reading of the Fifth Amendment to Trust, as well as the testimony of Mr. Macgurn. [¶] Based thereon, [Wanda's] request for an award of attorney fees is denied." Orders were entered accordingly.
D. Appeals and Cross-Appeal
Van appealed, and Wanda cross-appealed the attorney fees denial. We granted Van's request to take judicial notice of the record giving rise to our first prior opinion.
We have also augmented the record to include a reporter's transcript dated November 15, 2010, in which the court acknowledged there were problems with Wanda's lost objections to the proposed statement of decision, which had already been signed November 1, 2010. The court also discussed with the parties the status of the efforts being made by the recently appointed temporary trustee to sell trust property (the commercial property), which Van was resisting at the trial and appellate levels. Specifically, Van filed a third notice of appeal in this same case file, separately appealing the probate court's postjudgment order allowing sale of the trust commercial property, and he also brought a petition for supersedeas in this same cause, seeking to prevent the recently appointed temporary trustee from proceeding with the transaction pending appeal. On January 21, 2011, this court denied the petition and Van has since dismissed that separate postjudgment (third) notice of appeal. However, his appeal of the adverse trust beneficiary decision and the cross-appeal remain pending before this court.
DISCUSSION
In addressing Van's challenges to the order denying his petition, we set forth our standards of review and discuss the legal effect of the disposition in our first prior opinion. The further proceedings, as ordered, included admission and consideration of several forms of extrinsic evidence about the apparent intent of Ben, as the trustor, as it was demonstrated in the amendments to the trust. (Pts. I & II, post.)
We can then address the issues raised by Wanda's cross-appeal of the denial of her request for attorney fees, based on elder abuse statutory provisions. (Pt. III, post.) We set forth guidance for the proper course of action for the probate court in resolving these statutory fees issues upon remand.
I
APPLICABLE STANDARDS: APPELLATE REVIEW OF TRUST INTERPRETATION
To evaluate the parties' differing legal positions on the trust beneficiary issues, we apply well-established guidelines for interpreting trust documents:
"[I]t is proper for the trial court in the first instance and the appellate court on de novo review to consider the circumstances under which the document was made so that the court may be placed in the position of the testator or trustor whose language it is interpreting, in order to determine whether the terms of the document are clear and definite, or ambiguous in some respect. [Citation.] Thus, extrinsic evidence as to the circumstances under which a written instrument was made is admissible to interpret the instrument, although not to give it a meaning to which it is not reasonably susceptible. [Citation.] On review of the trial court's interpretation of a document, the appellate court's proper function is to give effect to the intention of the maker of the document. [Citation.] [¶] Particularly in the field of interpreting trusts and wills, each case depends upon its own peculiar facts, and ' "... precedents have comparatively small value...." ' [Citations.]" (Wells Fargo Bank v. Marshall (1993) 20 Cal.App.4th 447, 453 (Wells Fargo).)
After first reviewing the previous three-volume court file, and then appropriately admitting extrinsic evidence and other relevant evidence, the trial court interpreted the trust provisions. In its statement of decision, the court extensively analyzed the respective positions of the parties on the issue of whether the Fifth Amendment operated to disinherit Wanda as a beneficiary of the survivor's trust. Van contends that the court's conclusions are not supported by the evidence, so it erred in finding that the Third Amendment remained in effect, to grant Wanda beneficiary status.
A. Statement of Decision Review
The rules of review for judgments based upon statements of decision are well established. "Where [a] statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision." (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358; Prob. Code, § 1000 [Code Civ. Proc. rules of practice apply in probate proceedings].) The ultimate facts found in the statement of decision necessarily include findings on the intermediate evidentiary facts that sustain them. (Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1125.)
A statement of decision must include findings on all material controverted issues. (Code Civ. Proc., § 634.) Where the trial court fails to make any such essential findings, and the adversely affected party has preserved its claim on appeal, the statement of decision is deemed inadequate as a matter of law. In such a case, the remedy is for the appellate court to reverse the judgment for appropriate further proceedings on the omitted controverted issue. (In re Marriage of Hardin (1995) 38 Cal.App.4th 448, 453.)
B. Law of Case Arguments; Substantial Evidence Considerations
Where, as here, a trial court has properly interpreted a document containing ambiguous language by considering extrinsic evidence offered, and has determined that one of the meanings urged by the parties is the most reasonable and appropriate, such a construction of the document by the trial court will be upheld on appeal, so long as it is supported by substantial evidence. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1166.) The extrinsic evidence from Macgurn, Ben's family law attorney Moore, Van, Wanda, and other witnesses, went toward the appropriate purpose of illuminating all the circumstances under which the document was made. (Wells Fargo Bank, supra, 20 Cal.App.4th 447, 453.)
Van first argues that essentially, only the same evidence was offered at both the first trial and the retrial, about circumstances such as Ben's petition for legal separation, moving out of the family home, retaining Macgurn to amend the trust, and including language that Ben was not providing for Wanda. According to Van, this is the same record on appeal as before, and it again fails to present any substantial evidence supporting a ruling that Wanda qualifies as a beneficiary of the survivor's trust. Van relies on principles of law of the case to argue that our previous appellate decision (setting aside a decision in favor of Wanda) must be deemed to be binding upon this new record, which is not substantially different from the one previously before us. (Bank of America v. Superior Court (1990) 220 Cal.App.3d 613, 622, fn. 3.).
In our first prior opinion we said: "As the record currently stands, no substantial evidence supports the judgment that Wanda should remain a beneficiary of the survivor's trust, which contains Ben's separate property... [e]ven though it is not clear what the ultimate correct reading will be...."
In our second prior opinion, we generally outlined principles for applying the law of the case doctrine, such as Van now argues. "[W]here an appellate court states in its opinion a principle of law necessary to its decision, the principle becomes the law of the case for later proceedings, including appeals. [Citation.] The general rule is that the doctrine applies only to issues which were both presented and determined in a prior appeal. [Citation.] 'Where the particular point was essential to the decision, and the appellate judgment could not have been rendered without its determination, a necessary conclusion in support of the judgment is that it was determined.' " (Bovard v. American Horse Enterprises, Inc. (1988) 201 Cal.App.3d 832, 841-842 (Bovard).)
In cases in which the second trial produced no substantially different evidence than in the first trial, a prior appellate determination on sufficiency of the evidence to sustain the judgment will again apply. (Steelduct Co. v. Henger-Seltzer Co. (1945) 26 Cal.2d 634, 643; see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 470, p. 528.) However, if the new trial materially changes the evidence, there is no substantial identity of facts, and the previous appellate determination is no longer binding. For example, where additional witnesses appear at the second trial and additional evidence tends to correct the former gaps in the production of evidence, the appellate court will not consider its former ruling to be binding. (See 9 Witkin, Cal. Procedure, supra, § 472, p. 530; Weaver v. Shell Oil of California (1939) 34 Cal.App.2d 713, 718.)
This is such a case. The whole point of the reversal ordered by our prior opinion was to enable the trial court to reinterpret the trust documents by obtaining a fuller picture from the evidence, which was done. The first record could not have been dispositive of the key issue identified at that time, erroneous exclusion of relevant evidence, and we corrected the error by ordering retrial. (See Bovard, supra, 201 Cal.App.3d at p. 842.)
Accordingly, additional evidence was taken, and not all of it was cumulative or duplicative of the former showing. The trial court first considered the record from the former trial, and took additional testimony during two days of trial from six witnesses, including Macgurn, Ben's family law attorney Moore, Van, and Wanda, all of whom testified in various ways about the relationships between Ben and Wanda and Van, and about the different types of property involved, and about the estate planning, tax planning, and family law matters affecting the family. This produced an additional 300-some pages of reporter's transcript of testimony, supplying more detail to the judge presiding at the retrial (Judge Powazek, not Judge Cline who heard the first trial), and giving a fuller picture of the relevant disputes. The court noted, however, that the evidence before it was substantially similar as in the first trial, as recorded in our first prior opinion, with the exception of Macgurn's additional testimony at the retrial.
Even so, it is not enough for Van to merely assert that "substantially the same evidence" was presented. Much additional material was presented at the retrial, including various ways in which Macgurn contradicted himself about the legal advice he gave Ben at their two meetings, as well as his interpretations of the problems with the trust amendment documents he and his legal assistant created. Wanda points out that her own testimony was presented, although it was not heard at the first trial, and Van also testified. Although much of the evidence is similar, it was more complete at the retrial and addressed additional potential interpretations of the language of the Fifth Amendment.
Since the law of the case doctrine does not properly resolve all the issues presented by this record, we next consider Van's additional substantive criticisms of the probate court's trust interpretation order.
II
VAN'S APPEAL AFTER RETRIAL OF TRUST BENEFICIARY ISSUES
A. Issues Presented
Van's substantive arguments in this case cover two main topics: (1) the court's trust interpretation order erroneously applied reformation principles, under Civil Code section 3399, and thus mistakenly required Van to provide clear and convincing evidence to meet the required burden of proof supporting reformation, and (2) Van's actual theory of trial was that the plain language of the Fifth Amendment, in the paragraphs amending the children's trust, was clear enough to be enforced against Wanda, and that nothing in Ben's previous tax planning, in his family law petition for separation, or in the previous trust versions created any evidence or presumption to the contrary. Thus, Van contends his showing, by a preponderance of the evidence, about his entitlement to enforcement of the Fifth Amendment "failure to provide" language, through the testimony of Macgurn and other witnesses, successfully shifted the burden of proof to Wanda, but she failed to carry it.
To analyze those arguments, we reiterate (by adapting the language from our first prior opinion) the operation of the Fifth Amendment to the survivor's trust as it was restated in the Third Amendment. The Fifth Amendment did the following things: (a) revoked the Fourth Amendment; (b) named Van as successor trustee (therefore replacing Wanda); (c) stated that the 1975 survivor's trust is amended "only" as to the children's [grandchildren's?] trust, article VII; (d) and within the [grand] children's trust, stated that the trustor "intentionally, and with full knowledge, failed and omitted to provide for [Wanda]" (or for son William; obviously, Wanda and William are not grandchildren of Ben). Finally, (e) the Fifth Amendment is stated to be a part of the 1975 family trust, "which with the changes is approved and of full force and effect."
Our task is to assess whether substantial evidence supports the trial court's findings that there were several alternative interpretations of the subject trust language. If so, Van's petition was correctly denied, as his requested instructions did not clearly follow the intent of Ben, as the trustor. (Prob. Code, §§ 21102, subd. (a).)
B. Burden of Proof Issues
With regard to Van's first argument, as already stated, we believe the trial court had ample basis in the pleadings, the evidence and argument to treat this enforcement question as inextricably intertwined with the reformation question. First, as the petitioner, Van had the burden of showing the existence of all facts essential to his claim for relief. (Evid. Code, § 500.) Essentially, Van was seeking to have the Fifth Amendment override all contrary provisions, by revoking not only article VII, the children's trust, but also the articles in the Third Amendment to the trust that dealt with the survivor's trust, the marital trust, and the family bypass trust (articles IV, V, and VI). The court asked Macgurn questions at trial about whether that was his theory of how Ben's intent could be achieved, and Macgurn agreed. Such a substantive request to disregard those other important articles of the Third Amendment would logically have required reformation of the third amended trust, and Van cannot now deny that he pursued such a theory.
Moreover, it makes no difference which burden of proof the trial court utilized in resolving Van's claims against him. An appellate court reviews a trier of fact's determination that was made under a clear and convincing standard by utilizing the same review rules applicable to preponderance determinations. That is, the appellate court examines whether the trier of fact's conclusions are based upon substantial evidence, in either case, and upholds those decisions that are supported by substantial evidence. (Beeler v. American Trust Co. (1944) 24 Cal.2d 1, 7; Shupe v. Nelson (1967) 254 Cal.App.2d 693, 700; see 1 Witkin, Cal. Evidence (4th ed. 2000) Burden of Proof and Presumptions, § 38, pp. 187-188.)
After considering all the evidence, the arguments and the equities, the court stated that it could not "find that [Van] has met his burden of proof supporting a reformation of the Fifth Amendment as requested; this, despite the credible testimony of Mr. Macgurn. While [Van's] position may be logical as set forth above, ultimately, the Fifth Amendment is ambiguous and susceptible to other reasonable interpretations." This resulted in the court's finding that "[Wanda's] interest in [Ben's] property and estate shall be as set forth in the Third Amendment."
Since Van's arguments that a lesser burden of proof should have been required of him are not justified by this record, we return to the trust interpretation issues, to consider whether Van's selective reading of the Fifth Amendment children's trust language about Wanda must clearly override any beneficiary rights in Wanda that existed under the Third Amendment.
C. Alternate Interpretations and Descriptions
Van sought to demonstrate that in signing the Fifth Amendment, Ben intended to entirely supplant the Third Amendment terms as applied to the 1975 trust. Van argues that since the Fifth Amendment was the most recent statement of the trustor's intent, and amounted to a complete disposition of all of Ben's assets, it should override all earlier versions of the trust that benefited Wanda. (In re Estate of Wiemer (1962) 209 Cal.App.2d 7, 11-13 [the rule that several testamentary instruments should be construed together is only a guide for the purpose of ascertaining the testator's intent, and does not control if a later instrument clearly supersedes the earlier one].) He appears to argue that this sequence of events in amending the trust served to shift the burden of proof to Wanda, to rebut Van's theory that Ben's intent was clearly to disinherit her.
The trial court disagreed that Van's interpretation must control, and identified a number of additional possible interpretations. The main issue on appeal is whether the court's conclusion that the Fifth Amendment was ambiguous and unenforceable had any substantial evidentiary support.
The parties have characterized the possible interpretations of the Fifth Amendment in several categories: No. 1, all that Ben actually accomplished by stating that he did not want to provide for Wanda, within the children's trust, was to disinherit Wanda's grandchildren from the children's trust (since the remainder of the 1975 trust expressly remained in effect, and Wanda was a beneficiary under the most recent version of the survivor's trust, the Third Amendment, which was distinct from the children's trust). Wanda testified that Ben led her to understand that he would always provide for her needs.
In No. 2, the trial court's hypothetical analysis of Ben's possible intent was that he wanted to disinherit Wanda from the survivor's trust provisions (his separate property) but continue to support her through the family courts, but due to his untimely death, no such support orders were made. The court relied, for example, on Moore's belief that Ben was not acting punitively toward Wanda. We think that the trial court had some basis in the evidence to conclude that Ben distinguished in his mind between his separate property, as in the survivor's trust, and the community property that he would use to continue to support Wanda, such as by continuing to deposit his $1,400 per month social security benefits into a community bank account. Wanda brought forth evidence that those funds were not enough for all her reasonable needs. The anticipated family law support orders would accordingly have supplemented the trust transactions. However, Ben's actions were not definitive in the family court, and the survivor's and children's trust language and amendments remain ambiguous as to Wanda's status.
Another possible interpretation (No. 4) was that equitable estoppel would prevent Ben from disinheriting Wanda. (Estate of Housley (1997) 56 Cal.App.4th 342 [contract to make a will or devise may be enforceable].) We see no need to analyze the equitable estoppel ground because the trial court made no express findings about it and it does not form any substantial basis of the decision on review.
Under interpretation No. 3, the Fifth Amendment could be construed consistent with Macgurn's belief, that he was accomplishing a conversion of the children's trust into the only dispositive portions of the survivor's trust, based on Ben's instructions. Macgurn, however, admitted that to do so, he should have restated the trust and/or expressly revoked articles IV, V, and VI of the Third Amendment, insofar as they gave Wanda benefits. In any case, the bulk of the new testimony provided by Macgurn at retrial was highly conflicting on a number of topics, about what the amendment process accomplished or was meant to accomplish, as understood by himself or by Ben. It cannot be ignored (as previously noted in our first prior opinion), that Macgurn was sued by Van for legal malpractice and equitable indemnity, and Macgurn was defending that action with the assistance of his liability insurer. When Macgurn testified at both trust trials in favor of Van's position that Wanda had been completely disinherited, both trial judges were aware of his potential influence or bias toward seeking to save his professional reputation and resources, by supporting Van's theory of recovery. (Evid. Code, § 780, subd. (f) [credibility of witness may be evaluated in light of the existence of a bias, interest, or motive for testimony].)
In any case, it is difficult to infer from Ben's trust transactions, as explained by Macgurn, that either of them had any clear understanding of how the Fifth Amendment would affect Wanda's rights. Macgurn gave conflicting testimony on the following topics, among others. First, he told Ben that the operative dispositive provisions of the trust, including the Third Amendment provisions, would remain in effect. The Fifth Amendment expressly refers to the 1975 version of the trust as approved and unaffected by the changes to the children's trust. Macgurn was unclear on what the effect of the Fourth Amendment had been upon changing the trustees or the beneficiaries, although the Fifth Amendment revoked its terms. Macgurn did not know whether the survivor's trust was funded, or if the other trust created under the Third Amendment was funded (bypass trust). The commercial building that Van used in his business was the only major survivor's trust asset.
Macgurn was unaware that the 1975 trust contained a testamentary power of appointment that would have allowed Ben to disinherit William, even from Betty's decedent's trust. Ben told Macgurn that he did not want to alter the gift that Betty had made toward William, but Ben did not want to give anything more to William. Macgurn did not discuss Betty's decedent's trust, article III, with Ben, because he did not intend to deal with dispositive or postdeath trust provisions, but only the survivor's trust. However, Macgurn still thought he could accomplish the disinheritance of Wanda after Ben died, which seems inconsistent with the above.
Macgurn was told by Ben there was already a tax planning trust, so Macgurn did not address tax issues. The Third Amendment included as subtrusts of the survivor's trust (article IV) both a marital trust, naming Wanda (article V), and a family bypass trust (article VI) which was to receive, for tax planning purposes, the exemption equivalent share designated in the survivor's trust. Macgurn was unclear on whether Ben told him he was in the process of filing for separation or divorce from Wanda, or was only contemplating it. Neither Macgurn nor Ben noticed, when they were going over the trust, that the language about not providing for Wanda appeared only in the children's trust provisions. Macgurn had his legal assistant draft the trust, and did not edit it himself.
At different points in the proceedings, Macgurn took conflicting positions about whether he had made a mistake in drafting the Fifth Amendment, or whether its language about Wanda could be read as accomplishing that purpose. It does not matter that the trial court believed that Macgurn was a credible witness, since the substance of his inconsistent testimony did not provide any basis for strict enforcement of the language "omitted to provide for" Wanda, in light of the manner in which the Fifth Amendment was written.
The trial court also heard testimony from both Van and Wanda about their dealings with Ben, and the trial court commented that the evidence did not support any conclusion that Ben was totally alienated from Wanda or hated her. Rather, the court gleaned from the evidence that Ben was a gentleman who believed he was under a continued responsibility to provide for Wanda's needs in some way. Even if the trust transfer deed had been effective to put Ben's half interest in the Vista residence into the trust, Ben might have believed Wanda would still be able to live in it, pursuant to the Third Amendment.
From this background, and from considering where the various portions of the Fifth Amendment were placed within the structure of the existing trust versions, the trial court reasonably concluded that the Fifth Amendment terms were ambiguous and ineffective to disinherit Wanda from the survivor's trust, except as to her grandchildren as they were specifically mentioned in the children's trust. The trial court's construction of the document, and its conclusion that Van could not prevail on his enforcement petition, are supported by substantial evidence. (Winet v. Price, supra, 4 Cal.App.4th 1159, 1166.) Likewise, to the extent that trust reformation issues were actually tendered, the court had a substantial basis in the evidence to refuse Van's request that the Third Amendment articles affecting Wanda's beneficiary status under the survivor's trust (articles IV, V, VI) be revoked or restated.
III
WANDA'S CROSS-APPEAL ON DENIAL OF ELDER ABUSE ATTORNEY FEES
A. Wanda's Request for Attorney Fees Under the Act
In our first prior opinion, no issues about whether Van was liable for attorney fees were before us (for any breach of his fiduciary duties as trustee). In our second prior opinion, we addressed whether Ben's activities in 2006 violated Family Code standards (under its section 1102) in creating the trust transfer deed. We decided that under such a theory, the trust assets were not liable for Wanda's attorney fees, pursuant to Family Code sections 1101, subdivision (g) or 1102.
Currently, the only remaining statutory attorney fee claim made by Wanda is brought under the Elder Abuse Act, for "financial abuse, " on the grounds that Van, either as trustee or as an individual beneficiary or litigant, wrongfully withheld trust assets from her as a beneficiary of the survivor's trust. (§§ 15610.07, 15610.30 [definitions].) Under the Act, "financial abuse" of an elder, with resultant physical harm or pain or mental suffering, is defined and forbidden. (§ 15610.07; remedies are provided in § 15657 et seq.)
Under section 15610.07, abuse of an elder or dependent adult means either "(a) [p]hysical abuse or financial abuse... with resulting physical harm or pain or mental suffering"; or "(b) [t]he deprivation by a care custodian of goods or services that are necessary to avoid a physical harm or mental suffering."
Wanda raised such a claim in her joint trial readiness conference report, as amended, by listing attorney fees under the Act as a legal issue in dispute. In her statement of relief sought at trial, she requested such fees on the grounds that Van, "in his actions taken as Trustee of the trust and in pursuing this action, " had committed elder financial abuse, by obtaining or retaining her property for a " 'wrongful use' in that he knew or should have known his conduct was likely to be harmful to Wanda." Her trial brief likewise alleged that "Van's breach of fiduciary duty amounts to elder financial abuse, " and thus she was entitled to such fees. She does not specify if Van or the trust assets would be liable. However, Wanda's objections do not seek affirmative relief under any independent cause of action or cross-complaint theory.
The trial court denied Wanda's request for statutory attorney fees, on the grounds that "[Van's] position as maintained through these proceedings has been reasonable and appropriate based upon the evidence as presented including, but not limited to, the reading of the Fifth Amendment to Trust, as well as the testimony of Mr. Macgurn. [¶] Based thereon, [Wanda's] request for an award of attorney fees is denied."
Unfortunately, it appears that Wanda's two sets of filed objections to the proposed statement of decision (which was finalized without material change) were not made available to the probate court, as shown by the signed copy of its statement of decision, indicating in handwriting, "no objection filed." Wanda's September 15, 2010 objection to the proposed statement of decision referred to her earlier proposal for an additional issue to be addressed in the requested statement of decision, which was filed on July 21, 2010. Specifically, Wanda asked the trial court to specify the factual and legal basis for its decision that Van was not liable for financial abuse of an elder, in either of his capacities as an individual or as trustee of the survivor's trust, who owed duties of loyalty to Wanda as a beneficiary of the trust.
B. Issues Presented; Statutory Scheme
Statements of decision are required to include findings on all material controverted issues. (Code Civ. Proc., § 634.) Wanda, identifying herself as an elder within the meaning of the Act, set forth her fee claim in her pretrial filings, and after the tentative decision was issued, she sought findings on attorney fee entitlement issues regarding Van's actions as a trustee before the court, or an individual, but her filings were lost. If a trial court fails to make any essential findings on submitted issues, and the claim was brought to the court's notice, a statement of decision omitting such findings is deemed inadequate as a matter of law. (In re Marriage of Hardin, supra, 38 Cal.App.4th 448, 453.)
To analyze whether the court's findings and order of denial of fees were adequately supported by the statement of decision or by the provisions of the Act, we briefly outline the statutory scheme and determine the extent to which it can be applied to the current record. As we will show, the statement of decision fails to address an essential material issue adequately presented at trial by the existing pleadings, whether Van's conduct as a trustee or as an individual offended the substantive provisions of the Elder Abuse Act that impose liability for financial abuse, thus giving rise to the enhanced remedies available under the Act, such as an attorney fee award. This fees issue must be returned for appropriate further proceedings.
There is a separate attorney fee provision under the Act for elder abuse committed through physical abuse or neglect, section 15657, and we do not address that statute. Here we are concerned only with section 15657.5, the attorney fees provision applicable to defendants held liable for financial abuse. As will be shown, it is unclear whether a predicate tort is required for financial abuse "liability, " and consequent attorney fees liability. (See part III C, post.) We express no opinion on whether the trial court has the discretion to allow amendment of pleadings at this late stage of the proceeding.
The term "financial abuse, " as defined in section 15610.30, has many meanings, as applied to "a person or entity" who wrongfully takes property of an elder. Sometimes, the subject property is directly owned by the elder, but under section 15610.30, subdivisions (c) and (d)(1), property of an elder that is held by a representative (such as a "trustee, or other representative of the estate of an elder or dependent adult") can properly be the subject of proceedings under the Act for remedies against wrongful takings. Here, Wanda is asserting that the representative (Van) who holds the property on her behalf also violated the substantive provisions of the statute, which is a somewhat different definitional problem.
Under section 15610.30, subdivision (a): " 'Financial abuse' of an elder or dependent adult occurs when a person or entity does any of the following: [¶] (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both"; or "(2) Assists in taking [same] for a wrongful use or with intent to defraud, or both...." (Italics added; there are no issues raised here under subd. (3) of this section, wrongful taking through undue influence.)
It is also required for liability under section 15610.30, subdivision (b), that the "person or entity" who took, retained, etc., an elder's property for a wrongful use was deemed to have actual or constructive knowledge "that this conduct is likely to be harmful to the elder or dependent adult." (See Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 174 [interpreting § 15610.30 as including nonstatutory language of a bad faith component: "The substantive law of elder abuse provides that financial abuse of an elder occurs when any person or entity takes, secretes, appropriates, or retains real or personal property of an elder adult to a wrongful use or with an intent to defraud, or both. A wrongful use is defined as taking, secreting, appropriating, or retaining property in bad faith. Bad faith occurs where the person or entity knew or should have known that the elder had the right to have the property transferred or made readily available to the elder or to his or her representative."].)
Under section 15657.5, proven financial elder abuse can give rise to enhanced remedies, such as attorney fees: "(a) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney's fees and costs.... " (Italics added.) Both Van and Wanda testified about their expectations about the trust entitlements (e.g., the community residence upkeep) and trustee duties. However, the current record does not reveal the amount and basis for any such damages awarded against Van and/or the trust assets, since the trial court deferred damages issues until a later hearing, after meet and confer efforts were made.
C. Liability Requirements under Statutory Scheme
Generally, a party requesting statutory relief, as the aggrieved party, has the burden to show all of the required elements under the statute. (In re Marriage of Feldner (1995) 40 Cal.App.4th 617, 625.) In determining an attorney fee entitlement question under the Act, the probate court would necessarily make express or implied findings on whether the statutory predicates for an award have been met. (Carver v. Chevron, Inc. (2002) 97 Cal.App.4th 132 [distinguishing between issues of law on statutory attorney fee entitlement and discretionary determinations].) Thereafter, if appropriate, the trial court may exercise its discretion to award or deny fees, in light of all the relevant circumstances.
The law is unsettled at this time on whether a predicate tort is required in the first instance, or whether an independent statutory cause of action is created by the Act. (See Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657, 665-666 (Perlin); Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 403-404, fn. 6; Das v. Bank of America, Inc. (2010) 186 Cal.App.4th 727, 744.)
In Perlin, supra, 163 Cal.App.4th 657, 665-666, the court set forth its analysis that the California Supreme Court had stated in recent opinions, in dicta, that such an independent cause of action could be viable under certain circumstances. Specifically, in Barris v. County of Los Angeles (1999) 20 Cal.4th 101, in Delaney v. Baker (1999) 20 Cal.4th 23, 40, and in Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, the Supreme Court did not rule out that independent statutory causes of action could be stated under the Act, potentially as private rights of action to remedy elder abuse that was committed with recklessness, oppression, fraud or malice. (See Covenant Care, Inc., supra, at pp. 786, 788-790.)
In Perlin, supra, 163 Cal.App.4th 657, the factual context was physical harm to an elder in health care, resulting in an independent cause of action being brought under the Act. In Perlin, the court quoted from Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, for the observation that " '[a]n elder abuse claim could be a "cause of action" for some statutory purposes but not others.' " (Id. at p. 1525; Perlin, supra, 163 Cal.App.4th at p. 665, fn. 9.)
Other courts say the Act merely provides for enhanced remedies, such as attorney fees, when an underlying or predicate tort is proved (e.g., see Berkley v. Dowds (2007) 152 Cal.App.4th 518, 529 ["The Act does not create a cause of action as such, but provides for attorney fees, costs and punitive damages under certain conditions."]; ARA Living Centers-Pacific, Inc. v. Superior Court (1993) 18 Cal.App.4th 1556, 1563-1564, § 15657 [neglect or physical abuse].)
It is unclear whether, in this context of trust litigation, Wanda needs to prove the existence of a predicate tort on which to base the additional remedies for financial elder abuse allowed by the Act. (See Lickter v. Lickter (2010) 189 Cal.App.4th 712, 723-725 [resolving numerous questions about the survival of causes of action and lack of standing of former trust beneficiaries to pursue elder abuse remedies].) This record does not disclose whether Van's conduct, either as a trustee or as a beneficiary-litigant, amounted to the kind of financial abuse conduct prohibited by section 15610.30, subdivision (a)(1), that "[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder... for a wrongful use...." Van continued to act as trustee, after removal in November 2008, because no one replaced him and he thought he should keep the trust "afloat."
Arguably, Van took the litigation positions that he did, and failed to seek further instructions, under a good faith belief that his interpretations of the Fifth Amendment were legitimate and compelling, and he had the power to act pending trial. (Prob. Code, § 17200.) However, the record is equally susceptible to an opposite conclusion. The trial court specified only that Van's litigation positions "were reasonable." That does not suffice under the statutory definitions to establish whether any substantive financial elder abuse occurred, in the form of Van, either as trustee or as an individual beneficiary, wrongfully withholding trust assets from Wanda as a beneficiary of the survivor's trust. The scope of coverage of the Act is unclear, whether it can cover the taking of litigation positions potentially having such an effect upon an adversary, or whether more egregious conduct is required to recover damages and an additional fee award, under the terms of the Act. (See Wood v. Jamison (2008) 167 Cal.App.4th 156, 164-165 [sufficient evidence supported an award of elder abuse remedies against an attorney who not only assisted a client in depriving a vulnerable elder person of property, but also took a finders' fee out of the client's improper deal].)
However, we need not weigh in upon that legal issue at present. (See Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at pp. 786, 788-790.) This case should properly be resolved under principles requiring adequate statements of decision, as next explained.
D. Statement of Decision Problems; Guidelines for Fees Issues upon Remand
In our case, the trial court ruled no attorney fee award under the Act was possible, because "[Van's] position as maintained through these proceedings has been reasonable and appropriate based upon the evidence as presented including, but not limited to, the reading of the Fifth Amendment to Trust, as well as the testimony of Mr. Macgurn." Apparently, the court was unaware that Wanda had filed two sets of objections to the draft statements of decision, asserting that specific findings were needed on whether Van had committed elder abuse in his capacity as trustee (not as an individual), by failing to make distributions from the trust to Wanda after Ben died, "despite knowing that this conduct was likely to be harmful to [Wanda]." Wanda argued Van should have sought further instructions in performing as trustee.
The record before us does not reveal the result of the damages phase of the proceeding, ordered to be heard in December 2010. Whether damages are assessed against Van individually as a beneficiary, or against his share of the trust, or officially as trustee, will have some bearing upon Wanda's attorney fee entitlement. At this point in the development of the action, it would be inappropriate to rule as a matter of law on whether Van's official or personal acts fell within the scope of conduct that is statutorily actionable and remediable under the Act. (See Perlin, supra, 163 Cal.App.4th at pp. 665-666.) Nor do we express any opinion on whether further pleadings from Wanda would be necessary so that these issues may be joined.
Rather, the appropriate remedy is to reverse the order for such appropriate further proceedings on the omitted controverted material issue about Van's dual capacity, which was adequately preserved by Wanda in her written and filed objections (even if those were not received by the trial judge, for whatever reason). The attorney fee entitlement question must be resolved by the trial court, in its discretion, by interpreting the statute in light of the remaining factual and legal issues identified above, and by issuing an amended statement of decision that will fully address and apply the statutory criteria under the Act.
DISPOSITION
Affirmed in part as to the trust interpretation orders; reversed in part with directions on the attorney fee order. Each party shall bear his or her own costs.
WE CONCUR: HALLER, J. IRION, J.