Schlichter v. Kennedy CA4/2 (2025) · DecisionDepot
Schlichter v. Kennedy CA4/2
California Court of Appeal Nov 6, 2025 No. E083744Unpublished
Filed 11/6/25 Schlichter v. Kennedy CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
MARK KEVIN SCHLICHTER,
Plaintiff and Respondent, E083744
v. (Super.Ct.No. TRUPS2000158)
GARY KENNEDY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Damian Garcia,
Judge. Affirmed.
The Law Office of Jeff Grotke and Jeff Grotke for Defendant and Appellant.
Law Offices of Doonan & Doonan, Inc. and D. Scott Doonan for Plaintiff and
Respondent.
Gary Kennedy appeals from a judgment entered in a probate proceeding in which
the court found that he was not the putative spouse of his long-term romantic partner and
was therefore not her heir. We affirm.
1
BACKGROUND
In 1987, Anna Irene Caputo executed the Last Will and Testament of Anna I.
Caputo (the will) several months before she died. In the will, Caputo identified “Joanne
Schlichter Kennedy” as one of her three living adult children.1
The will was subsequently admitted to probate in Los Angeles County. In August
1988, a judgment was entered establishing a testamentary trust deemed the Caputo trust,
which adopted the terms of the will. Joanne was appointed as trustee of the Caputo trust.
The estate had approximately $500,000 in assets, including real property located on
Heliotrope Drive in Lake Arrowhead, California (the Heliotrope property).
The Caputo trust provided for distribution of Caputo’s assets “as provided for in”
the will as follows: “To decedent’s daughter, Joanne, as trustee, all of decedent’s real
property and personal property to be held in trust to be used by her during her lifetime as
she or a successor trustee may direct. Any assets remaining in the trust upon her death
shall pass to her heirs as she directs by Will or trust instrument. In the event she makes
no provision for distribution then upon her death such remainder shall pass to her
children, Michael Alan Schlichter, Mark Kevin Schlichter, and Wendy Schlichter Smith,
in equal shares.” Michael died in 2013.
Several weeks after the judgment was entered, Joanne purchased a property in
Banning, California (the Banning property) and took title to the property by grant deed as
1 Joanne is identified in her death certificate as Joanne Schlichter. To avoid confusion, we refer to Joanne and anyone with the last name Schlichter by their first names after they are initially identified by their full name. No disrespect is intended.
2
“Joanne Schlichter, an unmarried woman.” Twenty-eight years later, in October 2016,
Joanne executed The Joanne Schlichter Trust in which she named Kennedy as the trustee
and the sole beneficiary of the trust’s assets, including the Heliotrope property and the
Banning property. On the same day that Joanne executed her trust, she also executed
grant deeds described as “trust transfer deed[s]” purportedly conveying both the Banning
property and the Heliotrope property from Joanne to Kennedy as the trustee of the Joanne
Schlichter Trust.
Joanne died in January 2019. In July 2020, Kennedy recorded the grant deed to
the Heliotrope property with the San Bernardino County recorder’s office. In August
2020, Mark Schlichter filed a verified petition under Probate Code section 850 in a San
Bernardino County probate court to be appointed the successor trustee of the Caputo trust
and to recover the real property of the Caputo trust held by Kennedy, which he identified
as the Heliotrope property. (Unlabeled statutory references are to the Probate Code.)
The petition alleged that Kennedy was Joanne’s long-term boyfriend, whom she never
married.
In September 2020, the probate court found that Joanne’s life estate in the Caputo
trust terminated on her death, making Mark, Wendy, and Michael’s estate the
beneficiaries of the Caputo trust. The court appointed Mark as the trustee of the Caputo
trust.
Kennedy subsequently filed a verified objection to Mark’s petition. Kennedy
claimed that he and Joanne were married for 30 or 37 years and that the Heliotrope
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property was not part of the Caputo trust, because Joanne had expressly conveyed it to
him before she died.
The San Bernardino County probate court held an eight-day trial on the petition
from October 30, 2023, through November 9, 2023. Six witnesses testified, including
Kennedy and Mark.
On November 2, 2023, both Kennedy and Mark signed a stipulation about the
Banning property in a case proceeding in Riverside County regarding Joanne’s trust.
Kennedy and Mark stipulated as follows: “Whereas the Parties agree that Gary Kennedy
may seek any and all relief necessary in the San Bernardino Trust Litigation to perfect,
record, or otherwise defend any claim to title to the Banning property, as if fully pled
before trial. This relief may be similar to that sought in a Heggstad petition, or
reformation, or to otherwise equitably correct the deed, or order that it may be recorded.
[¶] Whereas the Parties agree that Mark Kevin Schlichter may assert any and all claims
and seek any and all relief necessary in the San Bernardino Trust Litigation regarding the
Banning parcel, including without limitation seeking relief to cancel and/or invalidate the
deed conveying the Banning Parcel from Joanne Schlichter to the Gary Kennedy, Trustee
of the Joanne Schlichter Trust as though fully pled before trial.”
Kennedy and Mark introduced the stipulation at the trial on Mark’s petition.
Kennedy’s counsel represented that under the stipulation Mark’s “relief is that he can ask
for, as if pleaded, the property be treated as a part of the trust if he can show it.” Mark’s
counsel explained that his “client is going to present claims that it either belongs to the
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Caputo or it doesn’t. [¶] I mean, that’s essentially it, you know, and all issues
surrounding Banning. That’s the whole point to litigate it all here. So I don’t think either
one of us should be limited to the claims.” Kennedy’s counsel agreed with that
explanation, saying, “That’s right.” The court ruled that with the stipulation it could
“make a determination regarding ownership or title or any claims related to the Banning
property; that’s all encompassed.” Kennedy’s counsel did not object.
Kennedy testified that he and Joanne were married in a church over 30 years ago.
He could not recall the specific date. Kennedy and Joanne did not get a marriage license.
In a declaration signed by Kennedy earlier in 2023 to support a motion filed in a probate
proceeding in Riverside County involving the Joanne Schlichter Trust, Kennedy attested
that Joanne was his putative spouse and that he and Joanne did not register their marriage
with the State of California “[b]ecause of strongly held religious beliefs.” Asked at trial
what he meant by that, Kennedy said that he believed that “a marriage should be your
vows under God where you vow to have and hold, keep in sickness and health, and it
does haven’t anything to do with the state, and the state shouldn’t have jurisdiction over
your marriage.” Kennedy confirmed that he was “aware that in California you need a
marriage license to get married.”
Wendy testified that Joanne paid for the Banning property with cash from the
Caputo trust. When Joanne purchased the Banning property, she told Wendy that “there
was enough cash in [Wendy’s] grandmother’s estate to purchase the house by cash.”
5
After the presentation of evidence, both parties submitted closing trial briefs and
responses. In Kennedy’s response to Mark’s closing brief, Kennedy argued that the
Banning property deed was “beyond any statute of limitations” because Joanne owned
the property for over 35 years.
In April 2024, the trial court issued a written ruling on the matter. The trial court
found Mark credible, Kennedy “less credible,” and all of the remaining witnesses
credible.
The court granted Mark’s section 850 petition to recover the property of the
Caputo trust held by another based on the following findings: (1) The Caputo trust gave
the Caputo trust assets to Joanne as trustee of the Caputo trust and “created a life estate”
in the Caputo trust assets “for the benefit of Joanne Schlichter to use during her lifetime
and to be held in trust by Joanne Schlichter”; (2) Joanne’s power of appointment of the
Caputo trust assets was limited to disposing of the assets upon her death by will or trust
to her heirs; (3) Joanne was single when she died; (4) Joanne and Kennedy were never
legally married, and Kennedy was not Joanne’s putative spouse “as a matter of law”; (5)
Joanne’s heirs upon her death were her two living biological children and the issue of her
third child; (6) any attempt by Joanne to dispose of the Caputo trust “assets to anyone
other Joanne Schlichter’s heirs is void as contrary to the term of the Caputo Trust”; (7)
the Joanne Schlichter Trust was “an invalid exercise of the specific power of appointment
in [the Caputo trust] because its primary beneficiary is [Kennedy] and includes non-heirs
a[s] residual beneficiaries”; (8) the Heliotrope property was an asset of the Caputo trust,
6
so the money from the sale of the Heliotrope property held by Kennedy’s attorney
belongs to the Caputo trust; (9) the Banning property “is an asset of the Caputo Trust
because it was purchased with Caputo Trusts assets”; and (10) “[t]he Grant Deed
executed by Joanne Schlichter on October 17, 2016, purportedly conveying the [Banning]
Propery to the Joanne Schlichter trust is canceled and is of no force and effect.”
In rejecting Kennedy’s claim that he was Joanne’s putative spouse, the court
reasoned that Kennedy “did not have a good-faith subjective belief that he and Joanne
were married.” Kennedy “knew a marriage license was required but chose not to obtain a
marriage license because of his religious beliefs.” The court found that Joanne and
Kennedy made a conscious choice not to get legally married, so there was no mistaken
belief that the marriage was valid.
The trial court also rejected Kennedy’s statute of limitations argument about the
Banning property, reasoning that “Joanne’s purchase of the [Banning] property in her
name was discovered after her death which would not be a bar to the statute of limitations
to set aside the conveyance.”
DISCUSSION
Kennedy challenges the trial court’s ruling on several grounds. None of the
arguments has merit.
Section 21102 provides that in interpretation of a trust instrument, the transferor’s
intent “as expressed in the instrument controls the legal effect of the dispositions made in
the instrument.” (Id., subd. (a).) “If the language of the instrument clearly sets forth the
7
intent, the court does not consider extrinsic evidence; it only looks to extrinsic evidence
in the event of an ambiguity.” (Trolan v. Trolan (2019) 31 Cal.App.5th 939, 949.)
A stipulation is an agreement that is “subject to the ordinary rules employed to
interpret contracts.” (Sy First Family Ltd. Partnership v. Cheung (1999) 70 Cal.App.4th
1334, 1341.) The mutual intention of the parties when the stipulation is formed governs
its interpretation. (Civ. Code, § 1636.) Their intent is to be inferred solely from the
written provisions of the stipulation, if possible. (Id., § 1639.) If the language of the
stipulation is clear and explicit, then the language governs its interpretation. (Id.,
§ 1638.)
Interpretation of a trust and a written stipulation presents a question of law that we
independently review “unless interpretation turns on the credibility of extrinsic evidence
or a conflict therein.” (Burch v. George (1994) 7 Cal.4th 246, 254; Munoz v. City of
Tracy (2015) 238 Cal.App.4th 354, 358.)
Kennedy first argues that the trial court did not have jurisdiction over the Banning
property, so the trial court’s ruling with respect to that property was “ultra vires and
void.” He contends that the parties’ “‘stipulation’ was not a stipulation to go forward
without pleadings” and that Schlichter was required “to plead and prove a cause of
action, violating due process and established legal standards.”
Kennedy made the opposite representation about the meaning of the stipulation in
the trial court. The parties agreed, and the trial court ruled, that the stipulation allowed
the court to determine ownership of the Banning property. Kennedy’s counsel told the
8
court, orally on the record, that under the stipulation Mark’s “relief [was] that he can ask
for, as if pleaded, the property be treated as a part of the trust if he can show it.” (Italics
added.)
“‘A party is not permitted to change his position and adopt a new and different
theory on appeal. To permit him to do so would not only be unfair to the trial court, but
manifestly unjust to the opposing litigant.’” (Richmond v. Dart Industries, Inc. (1987)
196 Cal.App.3d 869, 874.) Because Kennedy agreed in the trial court that the stipulation
conferred jurisdiction on the court to determine title to the Banning property “as if
pleaded” (italics added), he cannot now argue that the court lacked jurisdiction to hear
unpled claims concerning the Banning property or otherwise to determine ownership of
that property. (Ibid.)
In any event, the parties’ written stipulation conferred jurisdiction on the trial
court to do exactly what it did, namely, “to cancel and/or invalidate the deed conveying
the Banning Parcel from Joanne Schlichter to the Gary Kennedy, Trustee of the Joanne
Schlichter Trust as though fully pled before trial.” (Italics added.) The unambiguous
terms of the stipulation are thus consistent with the parties’ oral expressions of their
understanding of the agreement in the trial court. Under the plain language of the
stipulation, the court was authorized to determine the validity of the deed transferring title
of the Banning property to Kennedy even if the claim was unpled.
Kennedy next argues that there was “no basis to toll the statute of limitations for
35 years” to challenge the propriety of the Banning property deed, and he contends that
9
the statutory period began to run when Joanne recorded the deed in 1988. The argument
is forfeited because Kennedy has not adequately developed it or supported it by citation
to legal authority. Kennedy never identifies the specific type of claim (breach of trust?
quiet title?) that he contends is untimely, says what the statutory period is, or cites legal
authority concerning when the period begins to run. We will not develop Kennedy’s
arguments for him. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th
939, 956 (Cahill).) And the one case that he cites, Baker v. Beech Aircraft Corp. (1979)
96 Cal.App.3d 321, is a personal injury case and hence is irrelevant.
In any event, the argument is meritless. The Caputo trust gave Joanne a life estate
in the Caputo trust assets. Joanne could purchase the Banning property with the Caputo
trust assets. (Bliss v. Security-First Nat. Bank (1947) 81 Cal.App.2d 50, 56 [“Although a
life tenant is privileged to convert one kind of property into another, he must be at all
times guided by principles of prudence to the end that the value of the property is not
diminished”].) Joanne did not breach the terms of the trust as either beneficiary or trustee
until she died, when she purported to convey the Banning property to Kennedy, who was
not her heir. By the terms of the Caputo trust, Mark, Wendy, and Michael’s estate did
not become beneficiaries of that trust until Joanne died without devising by will or trust
the Caputo trust assets to any heir. Because the Caputo trust’s terms were not breached
until Joanne’s death, the statute of limitations concerning that breach began to run when
she died, and not before. (Ehret v. Ichioka (1967) 247 Cal.App.2d 637, 644.) Mark filed
his petition less than two years later. We are not aware of any arguably applicable statute
10
of limitations that is less than two years, and Kennedy cites none. (See, e.g., § 16460,
subd. (a)(2) [three-year statute of limitations for a beneficiary to assert a claim against a
trustee for breach of trust “after the beneficiary discovered, or reasonably should have
discovered, the subject of the claim”].)
Kennedy also argues that “[t]he court failed to articulate a legal theory for
canceling the 1988 deed” because “[c]ancellation or reformation of a deed requires a
cause of action, such as fraud or mistake, supported by evidence.” The argument is
meritless, because the trial court did not cancel the 1988 deed. The trial court found that
the Banning property “is an asset of the Caputo Trust because it was purchased with
Caputo Trust assets.” Thus, under the trial court’s ruling, Joanne took title to the
Banning property pursuant to the 1988 deed, but she did so as trustee of the Caputo trust.
The trial court cancelled the 2016 grant deed purportedly conveying the Banning property
to the Joanne Schlichter Trust, but the court did not cancel the 1988 deed. Rather, the
court’s ruling affirmed the validity of the 1988 deed, conveying title to Joanne as trustee
of the Caputo trust.
Kennedy also argues that the trial court misinterpreted the Caputo trust as creating
a life estate in the Caputo trust’s monetary assets. He contends that such an interpretation
is contrary to Caputo’s intent. We disagree. By its terms, the Caputo trust instrument
created a life estate for Joanne in the trust’s assets: “To decedent’s daughter, Joanne, as
trustee, all of decedent’s real property and personal property to be held in trust to be used
by her during her lifetime as she or a successor trustee may direct.” Those terms
11
established “‘an estate whose duration is limited to the life of the person holding it’” and
thereby created a life estate in the Caputo trust’s assets for Joanne. (Peterson v. Wells
Fargo Bank, N.A. (2015) 236 Cal.App.4th 844, 850-851.)
Kennedy generally contends that “the terms” of the Caputo trust instrument do not
support such an interpretation, but he fails to specify what language in the instrument
might support an alternative interpretation. In fact, Kennedy does not quote from the
Caputo trust instrument at all in his opening brief, even when he generally describes the
relevant provisions of the Caputo trust. We will not develop the argument for him.
(Cahill, supra, 194 Cal.App.4th at p. 956.)
Finally, Kennedy challenges the sufficiency of the evidence supporting the trial
court’s determination that he was not Joanne’s putative spouse and therefore was not her
heir. The challenge lacks merit.
“‘Heir’” is defined in the Probate Code as “any person, including the surviving
spouse, who is entitled to take property of the decedent by intestate succession under this
code.” (§ 44.) The putative spouse doctrine is a judicially developed doctrine that is now
codified in several statutory provisions and has been applied in probate proceedings.
(Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113, 1120-1121 & 1121, fn. 5 (Ceja);
Estate of Leslie (1984) 37 Cal.3d 186, 199-200 [a surviving putative spouse is entitled to
the status of surviving spouse in intestate succession and is entitled to succeed to a share
of the decedent spouse’s separate property]; Estate of Sax (1989) 214 Cal.App.3d 1300,
1304.)
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A putative spouse is statutorily defined as a spouse of a void or voidable marriage
in which “either party or both parties believed in good faith that the marriage was valid.”
status will be upheld on appeal if supported by substantial evidence.” (Id. at p. 1119.)
Kennedy argues that the evidence is insufficient to support the trial court’s
determination that Kennedy did not believe in good faith that he and Joanne were validly
married. The argument is forfeited because Kennedy focuses on the evidence favorable
to him and does not set forth all of the material evidence on the issue. (Foreman & Clark
Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Oakland Bulk and Oversized Terminal, LLC v.
City of Oakland (2025) 112 Cal.App.5th 519, 544.)
In any event, substantial evidence supports the trial court’s determination.
Kennedy’s testimony confirmed that he was “aware that in California you need a
marriage license to get married,” but he chose not to get a marriage license. That
testimony constitutes substantial evidence that Kennedy did not believe in good faith that
he and Joanne were validly married and instead chose not to enter into a legally valid
13
marriage. (Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187,
201 [“The testimony of a single witness, even if that witness is a party to the case, may
constitute substantial evidence”].)
To the extent that Kennedy also argues that it violates his First Amendment right
to the free exercise of religion not to recognize him as Joanne’s putative spouse, we
decline to exercise our discretion to consider that argument made for the first time on
appeal. (Souza v. Westlands Water Dist. (2006) 135 Cal.App.4th 879, 898-899.)
DISPOSITION
The judgment is affirmed. Mark shall recover his costs of appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
FIELDS Acting P. J.
RAPHAEL J.
14
AI Brief
AI-generated · verify before citing
Holding. The court held that the appellant was not the decedent's putative spouse because he lacked a good-faith belief in the validity of their marriage, and that the trial court properly exercised jurisdiction to invalidate the transfer of trust assets to the appellant.
Issues
Whether the trial court had jurisdiction to determine ownership of the Banning property based on the parties' stipulation.
Whether the statute of limitations barred the claim to recover trust assets.
Whether the trial court erred in finding the appellant was not a putative spouse entitled to inherit as an heir.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The court found that Joanne and Kennedy made a conscious choice not to get legally married, so there was no mistaken belief that the marriage was valid.”
“Kennedy’s testimony confirmed that he was “aware that in California you need a marriage license to get married,” but he chose not to get a marriage license.”
“The trial court cancelled the 2016 grant deed purportedly conveying the Banning property to the Joanne Schlichter Trust, but the court did not cancel the 1988 deed.”