Clampett v. Heger CA2/7

Filed 6/17/13 Clampett v. Heger CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

EARL A. CLAMPETT, JR., B241142

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BP113428) v.

JOEL W. HEGER et al., as Trustees, etc.,

Defendants and Respondents.

APPEAL from an order of the Los Angeles County Superior Court, Michael I. Levanas, Judge. Reversed and remanded with directions. Law Offices of Henry N. Jannol, Henry N. Jannol, Neal B. Jannol; Andreos & Andreos, and George P. Andreos for Plaintiff and Appellant. Palermo, Barbaro, Chinen & Pitzer, Philip Barbaro, Jr. for Defendants and Respondents. _____________

Earl A. Clampett, Jr. appeals from an order entered after the probate court sustained without leave to amend a demurrer to his petition seeking to compel trustees Joel W. Heger and Christian M. Heger to make a distribution under the terms of a trust. The probate court ruled Clampett, the holder of a durable power attorney conveyed to him by the trust beneficiary, had no standing as a matter of law to demand distribution on his principal‟s behalf and, in any event, his request did not conform to the requirements in the trust. We reverse. FACTUAL AND PROCEDURAL BACKGROUND 1. The Trust’s “Five-or-Five” Clause 1 Jack Heger and Marion Heger were married for 27 years until Jack‟s death in April 2008. When Jack died, his sons from a prior marriage, Joel and Christian, became trustees of his separate property trust. The trust contained a “five-or-five clause,” granting Marion, as Jack‟s surviving spouse, the right to request an annual distribution of the greater of $5,000 or 5 percent of the value of the trust as of the end of the preceding calendar year. “This request shall be by a written document specifically referring to this right of withdrawal during December of each such calendar year. This right of withdrawal is noncumulative, so that if the Settlor‟s spouse does not withdraw, during December of any one calendar year, the full amount allowed, the right to withdraw the amount not withdrawn shall lapse at the end of that calendar year.” 2. Clampett’s Exercise of the Five-or-Five Clause on His Mother’s Behalf Marion suffers from Alzheimer‟s disease. On August 25, 2006, prior to Jack‟s death, Marion conveyed to Clampett, her son from a prior marriage, a general durable power of attorney appointing him as her attorney-in-fact for all purposes, “effective immediately.”