Filed 8/4/26 Aleci v. McMillan CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
LINDA ALECI et al., B325724
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. 18STPB08364)
v.
DENISE MCMILLAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Aviva K. Bobb, Referee. (Pursuant to Code Civ.
Proc., § 638.) Affirmed.
The Law Offices of John A. Schlaff and John A. Schlaff for
Defendant and Appellant.
Lagerloff, Jamie N. Gonzalez, and Kevin W. Yang for
Plaintiffs and Respondents.
__________________________________
Appellant Denise McMillan is the sister of respondents
Linda Aleci and Robert Klinger.1 The three siblings are co-
trustees of the Klinger Family Trust, established by their
parents. In the proceedings below, a court-appointed referee
ordered that: (1) the Trust reimburse Rob $16,241.28 for personal
funds he expended on behalf of the Trust; (2) the Trust pay
$2,206.62 to Clear Home Solutions (CHS) for services CHS
performed for the Trust; and (3) Denise pay Linda and Rob
$15,000 for attorneys’ fees for fees they incurred bringing a
motion requesting the first two orders.
On appeal, Denise does not argue the referee erred by
finding that Rob incurred expenses on behalf of the Trust, that
CHS performed uncompensated services for the Trust, or that
Linda and Rob incurred attorneys’ fees litigating against Denise.
Instead, she contends the referee erred in ordering the Trust or
her to pay anyone, because all the payees were guilty of “unclean
hands,” and because the payments contravened the parties’
settlement agreement. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Settlement Agreement
In September 2018, Linda and Rob filed a petition for
instructions, alleging that, despite their best efforts, Denise was
hindering the administration of their deceased parents’ trust, of
which all three siblings were co-trustees and beneficiaries.
Respondents asked the court to order the three to begin the
process of settling the Trust’s affairs. In February 2019,
1 Because the parties refer to themselves as Denise, Linda,
and Rob, we follow suit.
2
respondents amended the petition and, in April 2019, filed a
supplement to the amended petition, asking the court to remove
Denise as a co-trustee due to malfeasance. Denise opposed the
request. In October 2019, Denise filed her own petition,
requesting the court remove Linda and Rob as co-trustees and
order them to provide an accounting.
On June 17, 2021, the parties entered into a Settlement
Agreement and Release. As relevant to this appeal:
Paragraph 5 of the agreement provided that “Rob shall
receive reimbursement from the Trust for Trust expenditures
that he personally paid out of pocket on behalf of the Trust in the
amount of $60,931. Rob shall be reimbursed for these expenses
prior to the distributions of any sums of Trust residue to any
Party. No other Party shall be entitled to reimbursement of any
amounts.” Paragraph 6 of the agreement provided that Rob
would “receive trustee fees in the amount of $70,500 to be paid by
the Trust. Rob shall receive these trustee fees prior to the
distributions of any sums of Trust residue to any Party. No other
Party shall receive any trustee fees.”
Paragraph 8 of the agreement provided that “[t]he Parties
shall keep a reserve of $10,000 to be used for Trust accounting
fees (but not to pay taxes) and any other remaining Trust
administration expenses.”
Paragraph 9 of the agreement provided that “[t]he Parties
agree to work cooperatively to instruct Logix Credit Union, LPL
Investments, and Bank of America to unfreeze all Trust accounts
such that the sums described in this Agreement can be paid and
the distributions can be made.”
Paragraph 10 of the agreement provided that, after real
property owned by the Trust (the “Burbank Residence”) was sold
3
and various fees and reimbursements paid, the trust assets
would be distributed equally among Denise, Linda, and Rob.
Paragraph 17 of the agreement provided that any disputes
regarding the interpretation or enforcement of the agreement
would be submitted to the Honorable Aviva K. Bobb (ret.) for
mediation.
Paragraph 21 of the agreement provided: “In the case of
any dispute relating to the terms of this Agreement or its
enforcement, the prevailing party shall be reimbursed by the
losing party for its reasonable attorneys’ fees and costs.”
B. The Addendum
On November 29, 2021, the parties entered into an
Addendum to Settlement Agreement and Release. Paragraph 2
of the Addendum provided that “Clear Home Solutions” would
engage in a “clean out process” for the Burbank Residence, as
well as “pack up the items to be distributed to the beneficiaries,”
if any beneficiary asked it to.
Paragraph 5 of the Addendum modified paragraph 9 of the
Settlement Agreement (providing the parties would cooperate to
unfreeze the Trust’s bank accounts to make payments and
distributions) to add “[u]pon written authorization of the Parties’
counsel, any one or more of the Co-Trustees shall be authorized
to issue checks to pay Trust administration expenses. Each Co-
Trustee shall confer with the other Co-Trustees prior to issuing
any such check, either directly or through counsel.”
Paragraph 6 of the Addendum deleted paragraph 17 of the
Settlement Agreement (agreeing to submit disputes to Judge
Bobb for mediation) and instead provided that the parties would
stipulate to appoint Judge Bobb as a referee pursuant to Code of
4
Civil Procedure section 638 to resolve any disputes arising out of
the Agreement and Addendum.
C. The Parties Request Appointment of a Referee
On the same day the parties signed the Addendum, they
also stipulated to the appointment of Judge Bobb to serve as
referee to determine “All disputes arising from the June 17, 2021
Settlement Agreement and Release and the November 29, 2021
Addendum to Settlement Agreement and Release.” The parties
expressly agreed Judge Bobb could “Determine any and all
disputes arising out of the Agreement and Addendum (the
‘Disputes’)”; “Issue binding orders determining the resolution of
any and all Disputes”; “Determine if it is appropriate to designate
a prevailing party(ies) relating to each of the Disputes and if a
sanction is appropriate to be awarded to the prevailing
party(ies)”; and “Issue binding orders determining the prevailing
party(ies) relating to each of the Disputes and awarding a
sanction.” In January 2022, the court appointed Judge Bobb to
serve as referee.
D. Respondents Move to Enforce the Settlement
1.
The Dispute
In March 2022, Denise’s attorney e-mailed respondents’
attorney a proposed stipulation authorizing the Trust’s bank to
pay $4,623.82 to CHS and $1,409.80 to Denise, for “what she
advanced to the jewelry appraiser.”2 In subsequent e-mails
2 Paragraph 3 of the Settlement Agreement provided that
“Linda shall be responsible for obtaining appraisals by a licensed
appraiser for all jewelry (21 items) previously located at the
(Fn. is continued on the next page.)
5
discussing the stipulation (in which both CHS and the parties
were included), respondents’ attorney requested the issue of
reimbursing Denise be tabled until counsel could confer with Rob
(who was out of town), and asked instead for a stipulation to pay
third-party vendors only. Specifically, respondents’ counsel
pointed out that Denise had sent an e-mail stating she had “no
issue with any legitimately incurred expenses on behalf of the
trust” and proposed the parties “get CHS and Go Green paid, and
when Rob returns, we can address the issue of reimbursement.”
Counsel added that the issue of reimbursing Denise “is not being
put off indefinitely, just until my client returns and I can discuss
the issues with him.”
After Denise’s counsel insisted on the stipulation he sent,3
CHS replied, addressing Denise’s counsel, and opined “[w]ith the
email below, you’ve provided clear evidence that you are in fact
Burbank Residence and currently in Linda’s possession.” In the
Addendum, the parties added to this paragraph: “The Parties
agree that the jewelry appraisal shall be paid forthwith from
Trust funds.” Denise claimed the Trust did not timely pay for the
appraisal and thus she personally “advanced the moneys for the
invoice so that the Appraisal -- eight months after it was
promised -- could finally be received.”
3 Denise’s attorney later averred in a declaration that
respondents’ attorney “demanded that I execute a new
stipulation (the ‘Gonzalez Stipulation’) for [the Trust’s bank]
Logix to pay CHS only -- in flagrant further violation of the
provisions of the Settlement Agreement quoted above -- and for
Denise to wait even longer for the ‘forthwith’ payment that her
clients had failed to pay for more than half a year. Denise --
quite understandably -- instructed me not to execute the
Gonzalez Stipulation.”
6
holding our rightful payment hostage in a misguided attempt to
coerce a reimbursement for your client, something (which I have
repeatedly stated that has nothing to do with the work CHS has
performed [sic] . . . [¶] You are also going against your client’s
approval of this payment, and so are not acting in your client’s
best interest, given that legal charges will be incurred that must
be reimbursed to CHS.” CHS concluded: “Because of this grossly
unethical behavior on your part, I have composed a complaint to
the California Bar Association that I shall put in the mail
tomorrow afternoon if I do not have clear and reliable proof that
the check is on its way. I’ve attached a photo of this complaint,
lest you make the gross misjudgment that I am not a person of
my word.”
Denise’s attorney replied that CHS had “misunderstood my
client’s e-mail” and that he did “not have her authorization to
sign the stipulation, nor was she giving it.” He also told CHS
that its e-mail “constitutes extortion which is a felony.” Denise
replied to this e-mail with “Ditto.” CHS replied, denying its e-
mail constituted extortion, stating “[y]our making those threats
and attempting to coerce me is also unethical,” and informing
Denise’s attorney that it would “mail [its] complaint today.”
When Denise’s attorney asked CHS to elaborate on the “threats”
and “coer[sion] [sic],” CHS responded: “I think it’s quite clear.
My issue is with your actions as an attorney – and most certainly
not with your client Denis[e] McMillan. [¶] We are simply
seeking payment for the services we provided as a neutral third-
party vendor.”
Denise then replied to this e-mail stating: “As I thought
was clear from my emailed ‘ditto’ to [my attorney] Mr. Schlaff’s
email to you on Friday morning, Mr. Schlaff is not now and never
7
was authorized to execute any stipulation for your payment other
than the one which he sent to [respondents’ attorney] Jamie
Gonzalez weeks ago, which Ms. Gonzalez has refused to sign for
specious reasons. The problem here is not with me or my
attorney, but with Ms. Gonzalez and her clients (and now with
you). Please stop deliberately misconstruing my words. I don’t
appreciate being patronized.”
In later e-mails between CHS and Denise’s attorney, CHS
apologized for the initial e-mail it sent, confirming that it
“misunderstood Denise’s email sent earlier that week in which
she’d said she did not object to paying for ‘legitimate’ services”
and that “[b]ecause she was continuing to ask that CHS do things
for her, I’d mistakenly assumed . . . that we were included among
those ‘legitimate’ services.” In answer to a question posed by
Denise’s attorney whether CHS filed the State Bar complaint, it
responded that it had but “[t]heir decision was to decline moving
forward with it, fortunately.” Denise’s attorney subsequently
informed CHS that its “misconduct has caused me to expend
more than forty hours of my time (for which I generally bill $650
per hour) dealing with this situation and meeting with counsel to
defend me. Despite the frivolous nature of your State Bar
complaint (which I only just saw), . . . I felt I had no choice but to
take time away from profitable work to prepare myself for the
aftermath of your bad faith complaint to the bar.”4
2. The Motion
In September 2022, respondents made a motion before the
referee to enforce the Settlement Agreement, alleging that
4 Denise claims dealing with CHS “has collectively cost
Denise and her counsel well in excess of $50,000.”
8
“[p]ursuant to the terms of the Agreements, certain services were
provided to the Klinger Family Trust” and “payment from the
Trusts necessarily flowed therefrom.” However, “Denise has
refused to permit such payment and, thus, is standing in the way
of effectuating the Agreements, permitting the proper
administration of the Trust, and unnecessarily dragging out this
litigation despite the fact that it has already been settled twice.”
Respondents also requested the attorneys’ fees they incurred for
filing the motion.
Specifically, respondents alleged Rob had advanced
$16,241.28 of his personal funds to pay Trust expenses because
Denise and her counsel “routinely interfered with or delayed
regular administrative payments from the Trust,” and Denise
opposed the Trust reimbursing him for these advances.
Respondents also contended Denise opposed payments to CHS for
the work they performed at the Burbank Residence, and that
$2,206.62 was still owing to CHS, along with $251.18 in
attorneys’ fees to which CHS was entitled.
3. The Opposition
In October 2022, Denise opposed respondents’ motion,
arguing neither CHS nor Rob should be paid because of their
“unclean hands.” For CHS, Denise cited the March 2022 e-mail
CHS sent to her attorney, which she characterized as “a textbook
example of extortion” and “a felony.” For Rob, Denise accused
him (and Linda) of breaching their fiduciary duty by failing to
“pursue claims” against CHS. Denise also faulted them for
bringing the motion in the first place, refusing to sign the
stipulation her attorney had proposed, and not meeting and
conferring. Denise additionally claimed Rob’s claims for
reimbursement contravened the Settlement Agreement.
9
4. The Reply
In their reply brief, respondents countered that the Trust
had no extortion claim against CHS because any alleged
extortion was aimed at Denise’s counsel and not at the Trust.
Respondents also asserted they had met and conferred with
Denise to no avail and disputed her interpretation of the
Settlement Agreement.
5. The Ruling
In November 2022, the referee granted the majority of
respondents’ requests. In her order, she noted Denise’s argument
that CHS was “barred from recovering the balance due from the
Trust due to the doctrine of unclean hands, which is a complete
defense,” as well as her argument that Linda and Rob had
“unclean hands” because they filed the motion, “motivated” CHS
“to commit crimes and torts by not signing the original
stipulation directing payment by the Trust,” “violated Paragraph
2 of the Addendum to the Settlement Agreement,” and “failed to
meet and confer.” The referee also noted respondents’ counter-
argument that “[t]he alleged unclean hands of CHS was directed
at [Denise’s attorney] Schlaff, and not at the Trust, its cotrustees,
or beneficiaries” and “[t]he Trust was, in no way, affected by the
alleged unclean hands of CHS.”
The referee found: (1) neither the Settlement Agreement
nor the Addendum required the parties to meet and confer before
bringing the motion but “[t]he Parties’ attorneys did
communicate extensively over several months concerning Rob’s
requested expenditures, including at hearings with this Referee”;
(2) “[t]he $16,241.28 expenditures by Rob were all documented,
necessary, and appropriate expenditures of the Trust, and all
benefited the Trust”; (3) “Paragraph 5 of the Settlement
10
Agreement does not prohibit Rob from being reimbursed for these
payments”; (4) “[t]he language in the [CHS] email does not affect
the Trust’s liability to pay for services previously performed, and
Denise’s counsel’s dispute is not for the benefit of the Trust”; (5)
“CHS performed its work to the benefit of the Trust, is entitled to
its contractual fees including attorneys’ fees, and any further
delay in payment would have increased the costs to the Trust in
the form of imposition of penalties and attorneys’ fees under the
contract”; and (6) “[t]he sum of $2,206.62 remains to be paid to
CHS for its work in clearing out the Residence.” The referee
further found that the Settlement Agreement permitted the
awarding of attorneys’ fees and that Linda and Rob reasonably
incurred $15,000 in fees for bringing the motion.5
The referee ordered: (1) the Trust to reimburse Rob for
$16,241.28 and pay CHS $2,206.62; (2) counsel for the parties to
sign the necessary paperwork to effect these payments; and (3)
Denise to pay Linda and Rob $15,000 for attorneys’ fees. Linda
and Rob’s motion to separately sanction Denise was denied. The
referee also did not award CHS the requested $251.18 in
attorneys’ fees.
Denise timely appealed.6
5 Respondents had requested $18,542.50 in fees.
6 (Code Civ. Proc., § 645 [“The decision of the referee
appointed pursuant to Section 638 or commissioner may be
excepted to and reviewed in like manner as if made by the
court”]; Prob. Code, § 1300 [“In all proceedings governed by this
code, an appeal may be taken from the making of, or the refusal
to make, any of the following orders: [¶] (c) Authorizing,
instructing, or directing a fiduciary, or approving or confirming
the acts of a fiduciary. [¶] (d) Directing or allowing payment of a
(Fn. is continued on the next page.)
11
DISCUSSION
Denise argues the referee erred by ordering the Trust to:
(a) pay CHS even though “CHS committed extortion as a matter
of law”; and (b) reimburse Rob when Rob had “unclean hands”
and when such payment contravened the Settlement Agreement.7
We address each point in turn.
debt, claim, or cost. [¶] (e) Fixing, authorizing, allowing, or
directing payment of compensation or expenses of an attorney. [¶]
(f) Fixing, directing, authorizing, or allowing payment of the
compensation or expenses of a fiduciary”].)
7 At oral argument, Denise’s counsel pointed out that the
$2,206.62 the referee ordered the Trust to pay CHS included
$244.12 in attorneys’ fees incurred by CHS and argued it was
improper for the Trust to pay those fees. We find Denise forfeited
this argument by failing to raise it in her opening brief. Although
her counsel claimed the issue was addressed, the sole mention of
the issue on the page her counsel cited was in the fact section,
which stated only: “Among the documents which were submitted
to the Referee for reimbursement were Exhibits ‘7’ and ‘8’
(8:AA1556-1558) which were copies of Heebner and CHS’s
purported legal fees which were apparently paid to Josslyn
Stuart of the ‘SMALL BUSINESS LAW FIRM, PC’. They show
that those fees were incurred in connection with the sending of
the Extrortionate [sic] Email.” This brief mention is insufficient
to demonstrate error. (See Mansell v. Board of Administration
(1994) 30 Cal.App.4th 539, 545 [“ ‘an appellate brief “should
contain a legal argument with citation of authorities on the
points made. If none is furnished on a particular point, the court
may treat it as waived, and pass it without consideration” ’ ”];
Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [“We
are not required to examine undeveloped claims or to supply
arguments for the litigants”].)
12
A. The Referee Did Not Err in Ordering the Trust
to Pay CHS
Denise contends the referee “abused her discretion”
(boldface and capitalization removed) in ordering the Trust to pay
CHS because CHS “committed extortion as a matter of law,”
which purportedly provided the Trust with an “unclean hands”
defense to any claim for payment CHS might make in a court of
law. Additionally, Denise contends CHS’s e-mail gave the Trust
“a contractual cause of action against CHS” that the Trust was
obligated to pursue. We disagree.
Although the referee’s order does not expressly state
whether she found the doctrine of unclean hands barred the relief
respondents sought, we presume she found the defense
inapplicable because she granted the majority of the requested
relief after noting Denise had argued to the contrary, and
because she found CHS’s e-mail “does not affect the Trust’s
liability to pay for services previously performed, and Denise’s
counsel’s dispute is not for the benefit of the Trust.” (Kaushansky
v. Stonecroft Attorneys, APC (2025) 109 Cal.App.5th 788, 799 [“ ‘A
judgment or order of a lower court is presumed to be correct on
appeal, and all intendments and presumptions are indulged in
favor of its correctness’ ”].) We review a decision to apply (or not
apply) the unclean hands defense for abuse of discretion.
(Aguayo v. Amaro (2013) 213 Cal.App.4th 1102, 1109.)
Penal Code section 519 provides that “[f]ear, such as will
constitute extortion, may be induced by a threat of any of the
following: [¶] . . . [¶] 2. To accuse the individual threatened . . . of
a crime. [¶] 3. To expose, or to impute to him . . . a deformity,
disgrace, or crime. . . .” Citing this section, Denise argues CHS’s
e-mail is a “textbook example” of threatening “ ‘[t]o accuse the
13
individual threatened . . . of a . . . deformity, disgrace, or crime.’ ”
Even assuming CHS’s threat to report Denise’s attorney to the
State Bar constituted a threat to accuse him of (or “expose” or
“impute to” him) “a deformity, disgrace, or crime,” it is debatable
whether CHS “committed extortion as a matter of law” as Denise
claims. (See, e.g., Flatley v. Mauro (2006) 39 Cal.4th 299, 332, fn.
16 [“our opinion should not be read to imply that rude,
aggressive, or even belligerent prelitigation negotiations, whether
verbal or written, that may include threats to file a lawsuit,
report criminal behavior to authorities or publicize allegations of
wrongdoing, necessarily constitute extortion”].) Additionally,
even if CHS committed extortion, it is unclear CHS committed
extortion against the Trust.
But, assuming arguendo that CHS did commit extortion
against the Trust, unclean hands is an equitable defense. “The
defense of unclean hands does not apply in every instance where
the plaintiff has committed some misconduct in connection with
the matter in controversy, but applies only where it would be
inequitable to grant the plaintiff any relief.” (Dickson, Carlson &
Campillo v. Pole (2000) 83 Cal.App.4th 436, 446–447.) “The court
must consider both the degree of harm caused by the plaintiff’s
misconduct and the extent of the plaintiff’s alleged damages.”
(Id. at p. 447.) “The decision of whether to apply the defense
based on the facts is a matter within the trial court’s discretion”
and a “court’s discretion to grant an equitable defense such as
unclean hands is not unlimited.” (Ibid.)
“ ‘An abuse of discretion occurs only where it is shown that
the trial court exceeded the bounds of reason. [Citation.] It is a
deferential standard of review that requires us to uphold the trial
court’s determination, even if we disagree with it, so long as it is
14
reasonable.’ ” (Blueberry Properties, LLC v. Chow (2014) 230
Cal.App.4th 1017, 1020.)
Here, there is no evidence in the record that CHS’s threat
adversely affected the Trust such that it would be equitable to
deny payment to CHS. To the extent Denise’s attorney contends
he was forced to incur fees to deal with an anticipated State Bar
investigation, or Denise contends those fees were passed on to
her, those are not claims the Trust can pursue against CHS.
Nothing in the record demonstrates the Trust was obligated to
pay any such fees. In these circumstances, we cannot conclude
the referee exceeded the bounds of reason in declining to apply an
unclean hands defense to preclude payment from the Trust to
CHS for services rendered.
B. The Referee Did Not Err in Ordering the Trust
to Reimburse Rob
1. The Doctrine of Unclean Hands Does Not
Bar Reimbursement
Denise argues Rob’s hands were “unclean” for four reasons:
(a) Linda and Rob brought the motion Denise was opposing in
violation of their fiduciary duties to Denise as a co-beneficiary; (b)
Linda and Rob “motivated” CHS’s extortion by refusing to sign
the stipulation proposed by Denise’s counsel; (c) Rob “secretly
authorized and paid CHS” in violation of paragraph 2 of the
Addendum; and (d) Linda and Rob initially failed to meet and
confer about paying CHS and then, after doing so, “deliberately
misrepresented to the Referee the basis for Denise’s objections to
further payments going to CHS.”
First, as discussed above, the defense of unclean hands is
an equitable one, and the referee had discretion to not apply it.
15
Given the circumstances discerned from the record, we do not
conclude the referee abused her discretion in declining to do so.
In any case, Denise provides no authority that Linda and
Rob’s motion was a breach of fiduciary duty under these
circumstances—indeed, in seeking to pay CHS for services
rendered, Linda and Rob were attempting to protect the Trust
from further legal liability for unpaid bills. There is no evidence
CHS was “motivated” by Linda and Rob’s refusal to sign the
stipulation proposed by Denise’s counsel—CHS was clear in its e-
email that it was “motivated” by the refusal of Denise’s attorney
to sign the stipulation sent by Linda and Rob’s attorney, which
would have authorized payment to CHS without involving the
issue of reimbursement to Denise.8 Inasmuch as the Addendum
expressly stated CHS would be performing a “clean out process”
at the Burbank Residence and Rob was responsible for the initial
communications with CHS, Rob’s authorization to CHS to
perform work was not done in “secret” or done unilaterally. And
Denise fails to specify what misrepresentations Linda and Rob
made to the referee, or what impact those representations had on
the referee’s decision. We conclude the referee did not abuse her
discretion by declining to use the unclean hands defense to
preclude payment to Rob.
8 Denise herself admits, the stipulation sent by her counsel
directed the Trust’s bank to not only “pay CHS its purportedly
outstanding bill” but also to “pay the jewelry appraisal moneys
which her clients had already agreed in writing to being paid
‘forthwith’ ” from the bank account. Whereas the stipulation
offered by respondents’ counsel would “pay CHS only.”
16
2. The Settlement Agreement Does Not Bar
Reimbursement
Finally, Denise argues that “Paragraph 5 and 6’s definitive
statements in the Initial Settlement Agreement as to the exact
amount of money Rob would be receiving, as well as its
specification of how the parties were to meet and confer
concerning the issuance of checks in the future, on the one hand,
compared with the settlement agreements’ absolute silence as to
future reimbursements of undisclosed, unconsented to trust
expenditures requires the agreements to be interpreted as
forbidding such expenditures.” Although the court did not
discuss paragraph 6, it found paragraph 5 did not preclude Rob’s
reimbursement request. “The interpretation of a contract is
subject to de novo review where the interpretation does not turn
on the credibility of extrinsic evidence.” (Morgan v. City of L.A.
Bd. of Pension Comrs. (2000) 85 Cal.App.4th 836, 843.)
Paragraph 5 of the Settlement Agreement provided that
Rob would “receive reimbursement from the Trust for Trust
expenditures that he personally paid out of pocket on behalf of
the Trust in the amount of $60,931” and that he “shall be
reimbursed for these expenses prior to the distributions of any
sums of Trust residue to any Party.” Paragraph 6 provided that
Rob would “receive trustee fees in the amount of $70,500” and
“[n]o other Party shall receive any trustee fees.” Neither
paragraph precluded reimbursements for expenses occurring
after the date of the agreement. Paragraph 5 dealt only with
reimbursement for expenses that Rob had “personally paid”
(italics added) at the time the agreement was entered, not
expenses that he would later pay. Paragraph 6 dealt only with
trustee fees, not expense reimbursement.
17
Moreover, paragraph 2 of the Addendum provided that “the
Parties agree that the Burbank Residence shall be cleaned out as
soon as Clear Home Solutions is able to begin the clean out
process” and that “Rob shall be initially responsible for setting up
the clean out.” Therefore, the parties expressly agreed the Trust
would use CHS to “clean out” the Burbank Residence. There was
no suggestion that CHS would be donating its services, and such
an assumption would be absurd. Additionally, it is clear from the
agreements that the parties contemplated the Trust would incur
other expenses after the execution of the Settlement Agreement:
paragraph 8 of the Settlement Agreement provided that the
Parties would “keep a reserve of $10,000 to be used for Trust
accounting fees . . . and any other remaining Trust
administration expenses,” and paragraph 5 of the Addendum
provided a procedure by which a Trustee could issue a check to
pay for such expenses. Thus, while the agreement did not
expressly state the Trust would pay CHS for its services, such an
interpretation is the only reasonable one. “[A] contract is to be
interpreted as a whole, giving effect to every part [citations],
thereby avoiding an absurd construction.” (Foreman Roofing v.
United Union of Roofers Etc. Workers (1983) 144 Cal.App.3d 99,
107.)
On this record, we conclude the referee did not err in
ordering the Trust to reimburse Rob and pay CHS. Because
Denise does not contest the referee’s attorneys’ fees order—except
to the extent that she contends Linda and Rob should not have
prevailed on their motion at all, an argument we reject—we also
conclude the referee did not err in ordering Denise to pay Linda
and Rob $15,000 in attorneys’ fees.
18
DISPOSITION
The referee’s order is affirmed. Respondents are the
prevailing parties in this appeal for purposes of attorneys’ fees
and are awarded their costs on appeal.
NOT TO BE PUBLISHED
M. KIM, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
19