Ostrosky v. Permann CA1/1

Filed 9/14/20 Ostrosky v. Permann CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

EILEEN OSTROSKY, Plaintiff and Appellant, A158057 v. VERLA D. PERMANN, as Trustee, (Contra Costa County etc., et al., Super. Ct. No. P14-00302) Defendants; LOUISE K. MORRIS, Defendant and Respondent.

Following remand from this court in Schwan v. Permann (2018) 28 Cal.App.5th 678 (Schwan), the probate court determined plaintiff Eileen Ostrosky did not qualify for a trust distribution because she failed to satisfy an employment condition. Ostrosky appeals from that decision, arguing her later employment for a model train business met the required condition. We disagree and affirm. I. BACKGROUND As described in more detail in Schwan, Walter C. Permann (Permann) created The Walter C. Permann Separate Property Trust (Trust), which entitled Donna Schwan, Alexis Johnson, and Ostrosky to certain distributions if each was employed by Control Master Products, Inc. (Control

Master Products), a wire and cable distribution business, at the death of Permann and his wife, Verla D. Permann. (Schwan, supra, 28 Cal.App.5th at pp. 681–682.) If this condition was not met, the Trust provided those distributions “ ‘shall lapse.’ ” (Id. at p. 682.) “Following a bench trial, the probate court excused Schwan’s and Johnson’s noncompliance with the employment condition because the assets of the company were sold in 2008, rendering satisfaction of the condition impossible.” (Id. at pp. 681–682.) However, the probate court did not excuse Ostrosky’s noncompliance. (Id. at p. 682.) “[T]he probate court concluded ‘her compliance [with the condition] was not rendered impossible by the sale of the company, but by her retirement. While she was suffering from myriad health problems, she did not show that it was impossible for her to continue to work.’ The court held Ostrosky failed to meet the condition of the gift and her performance was not excused.” (Id. at p. 695.) On appeal, this court affirmed the probate court’s holding as to the doctrine of impossibility. (Schwan, supra, 28 Cal.App.5th at p. 695.) We concluded “the probate court properly considered whether the doctrine of impossibility of performance applied,” and substantial evidence supported the probate court’s application of the doctrine of impossibility as to Schwan and Johnson. (Ibid.) As to Ostrosky, we held “substantial evidence supports the probate court’s conclusion that Ostrosky’s noncompliance was caused by her own conduct, i.e., her decision to retire.” (Ibid.) However, Ostrosky raised a second issue on appeal. She also argued she met the employment condition in the Trust because she occasionally worked for Permann’s subsequent business, Custom Model Products, Inc. (Custom Model Products), which sold model trains. (Schwan, supra, 28 Cal.App.5th at p. 696.) We noted for Ostrosky’s claim to succeed, she must