California Court of Appeal Oct 29, 2015 No. E062070Unpublished
Filed 10/29/15 Josephson v. Thomas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
CAROL JOSEPHSON,
Plaintiff and Respondent, E062070
v. (Super.Ct.No. PSP1200194)
ERWIN DALE THOMAS, as Trustee, etc., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. James A. Cox, Judge.
Affirmed.
Law Office of Armand Tinkerian and Armand Tinkerian for Defendant and
Appellant.
Lopez & Wilmert, Larisa L. Wilmert and Darin J. Wilmert for Plaintiff and
Respondent.
1
I
INTRODUCTION1
This appeal involves a dispute about a family trust between two siblings, appellant
Erwin Dale Thomas, and his sister, respondent Carol Josephson. The probate court
issued a decision imposing a surcharge against Thomas, the trustee, in the amount of
$59,960.61, and awarded Josephson attorney’s fees and costs of $12,203.55. The probate
court denied Thomas’s voluminous, 464-page, motion for reconsideration. (Code Civ.
First, Thomas has failed to meet his burden on appeal to show that substantial
evidence does not support the probate court’s factual findings. Therefore, any error is
deemed waived. (Foreman & Clark Corp. v. Fallon, supra 3 Cal.3d at p. 881.)
Even if waiver did not operate, Thomas did not meet his burden to demonstrate to
the probate court that he kept proper records. If a trustee fails to keep proper records, all
presumptions are against him and any doubts are resolved against him: “Trustees are also
under an obligation to render to beneficiaries a full account of all their dealings with the
trust property, and where there has been a negligent failure to keep true accounts all
presumptions are against them upon a settlement. (Purdy v. Johnson, 174 Cal. 521 [163
P. 893].) Trustees are also under the duty to prove every item of their account by
‘satisfactory evidence’; the burden of proof is on them and not on the beneficiary; and
any doubt arising from their failure to keep proper records, or from the nature of the
proof they produce, must be resolved against them.” (Estate of McCabe (1950) 98
Cal.App.2d 503, 505.)
Thomas offered an accounting that was not supported by any documentary
6
evidence, such as receipts for work performed on the trust’s real property. Meanwhile, in
Thomas’s deposition, he admitted to mishandling or misappropriating the trust vehicles.
He did not open a trust bank account and commingled funds. He wrongly delegated the
distribution of personal property to Scott and allowed Scott and her family to occupy the
real property without paying rent before finally selling the property to Scott.
We reiterate: “The trustee must present to the trial court satisfactory evidence of
the accuracy and propriety of the items in his account.” (Estate of McLaughlin (1954) 43
Cal.2d 462, 465.) Based on the affirmative evidence submitted by Josephson and the
absence of evidence presented by Thomas, it is indisputable that substantial evidence
supported the trial court’s decision to surcharge the trustee. (Blackmon v. Hale (1970) 1
Cal.3d 548, 560-561.)
As to the motion for reconsideration, Thomas had to demonstrate to the probate
court that his motion was based on new or different facts that could not have been
discovered earlier. (Code Civ. Proc., § 1008; New York Times v. Superior Court (2005)
135 Cal.App.4th 206, 212-213.) Instead, at oral argument, his new attorney—retained
after the court ruled against him—admitted that some of the evidence had been misplaced
and rediscovered in a storage locker. Thomas’s two main points are that the $80,000
sales price for the real property was higher than some estimates and that he had to remove
13.5 tons of waste from the property and effect repairs before it could be sold. However,
the probate court repeatedly observed that none of the information offered by Thomas
was new or different. Even if the probate court considered the purported new or different
7
evidence, it would still conclude that Thomas breached his duties as a trustee.
We reject Thomas’s insistence that the probate court was required to exercise its
inherent authority to change its decision on its own motion before entry of judgment.
(Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107, citing Darling, Hall & Rae v. Kritt
(1999) 75 Cal.App.4th 1148, 1156-1157.) The probate court did not abuse its discretion
in denying the motion for reconsideration. (New York Times v. Superior Court, supra,
135 Cal.App.4th at pp. 212-213; Glade v. Glade, supra, 38 Cal.App.4th at p. 1457.)
We recognize the probate court could award Josephson attorney’s fees from the
trust under the common fund doctrine. (Rider v. County of San Diego (1992) 11
Cal.App.4th 1410, 1422-1423.) However, we decline to make a discretionary award of
fees on appeal where an increase in assets of trust did not substantially benefit any parties
other than litigators. (Estate of Gump (1982) 128 Cal.App.3d 111, 118.)
IV
DISPOSITION
We affirm the judgment and order Josephson to recover her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. We concur:
HOLLENHORST Acting P. J.
KING J.
8
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the probate court's judgment surcharging the trustee for breach of fiduciary duties and denying his motion for reconsideration, finding that the trustee failed to provide substantial evidence to support his accounting or justify his actions.
Issues
Whether substantial evidence supports the probate court's findings that the trustee breached his fiduciary duties.
Whether the probate court abused its discretion in denying the trustee's motion for reconsideration.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Based on the affirmative evidence submitted by Josephson and the absence of evidence presented by Thomas, it is indisputable that substantial evidence supported the trial court’s decision to surcharge the trustee.”
“The probate court did not abuse its discretion in denying the motion for reconsideration.”