Dolley v. Cummins

Filed 8/28/08 Dolley v. Cummins CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Appeal from an order of the Superior Court of Orange County, Marjorie Laird Carter, Judge. Reversed and remanded with directions.

John L. Dodd & Associates and John L. Dodd for Plaintiff and Appellant.

Bidna & Keys and Richard D. Keys for Defendant and Respondent Kenneth Cummins.

Law Offices of Marc T. Eagan and Marc T. Eagan for Claimant and Respondent Robert Donald Matthews.

Denise Dolley, a cotrustee and beneficiary^[1]of the Mariana Callies Trust (the Trust), appeals from an order decreeing that, in the wake of a 2005 settlement of an earlier dispute involving the Trust, she can no longer exercise authority granted to her as beneficiary under paragraph 6.7 of the Trust, to remove a cotrustee and replace him with a different qualified trustee. Dolley argues that nothing in the terms of the settlement addresses paragraph 6.7, and thus it was not effective to nullify that provision. We agree.

The settlement, while adopting confusing titles for each of the two cotrustees of the Trust, nonetheless contains clear provisions specifying a division of labor between them. The settlement also expressly reaffirms one of Dolleys rights as the primary beneficiary.^[2] However, the settlement does not include any terms which even mention, let alone revise, paragraph 6.7 of the Trust. Moreover, there is no extrinsic evidence suggesting Dolleys rights under the paragraph were considered, let alone discussed, during negotiation of the settlement. On this record, there is no basis to conclude the settlement was intended to affect paragraph 6.7, let alone entirely deprive Dolley of her rights thereunder. The order is reversed.

FACTS

This dispute began with the filing of a petition to suspend the powers of Dolley and Murshed Alam-Ahmed as cotrustees of the Trust; to remove them as cotrustees, and to surcharge them. The petitioner, Robert Matthews, is the father and guardian ad litem of minors Dionisia Justine Matthews and Malina Anne Matthews, who are the residual beneficiaries of the Trust.

The petition alleged that Marianna Callies, the mother of Dionisia and Malina, created the trust in November of 2003, naming herself and her mother, Dolley, as cotrustees and primary beneficiaries. At the time the Trust was created, Callies was suffering from pancreatic cancer, and apparently understood that her condition was terminal.

The Trust itself specifies that the property included therein, consisting of two pieces of real property designated as: (1) the Dolley Residence on Paseo La Branza in San Juan Capistrano, and (2) Commercial Rental Real Property located on Hartsook in North Hollywood, were originally given to Callies by Dolley, with the expectation that [Callies] would take care of [Dolley] for life with those gifts.

The Trust specifies that the trustee shall pay or apply to the benefit of Callies and Dolley, or the survivor of them, the net income from the trust, as well as whatever portion of the Trust principal the Trustee, in the exercise of discretion, deems proper for their or the survivors proper support. The Trust also specifically gives Dolley sole and unrestricted use of the Dolley Residence.

The Trust also provides, in paragraph 6.7, that following the death of Callies, a majority of the adult beneficiaries of this trust shall have the power, at any time and for any reason, with or without cause, to remove any trustee acting under this instrument, and notwithstanding any other provision of this instrument, designate another trustee to replace the removed trustee. The successor trustee may be any qualified entity or individual. Removal shall be effected by giving a written notice of removal to the trustee to be removed and to the designated successor. The removal shall become effective when a written acceptance of the trust has been signed by the designated successor, and the trustee being removed shall be notified promptly of that acceptance.

Callies died in December of 2003. Following her death, Michael T. Walsh served as cotrustee until late March of 2004, when he resigned, apparently at Matthews request. In early April of 2004, Alam-Ahmed took over as cotrustee.

According to Matthews petition, Dolley and Alam-Ahmed breached their obligations as cotrustees, in that they failed to properly administer and manage the Trust, and, by several acts and omissions constituting breaches of trust, [they] have improperly prevented the residuary beneficiaries of the Trust from learning the status of the trust administration . . . . Matthews also claimed Dolley and Alam-Ahmed mismanaged the Hartsook property by allowing William J. Condos, the co-owner of the Hartsook property, to act as the manager of the residential real property. During Mr. Condos tenure as the property manager, there were a variety of problems caused by his mismanagement of the property. . . . [] In addition, [Dolley] and Mr. Alam-Ahmed failed to pay debts owed to the Trust (i.e. the trust deed on the Dolley residence) . . . . [] Appellant and Mr. Alam-Ahmed also failed to pay on time the property taxes on the Dolley residence. This resulted in the Trust incurring penalties for failure to pay the property taxes on time. . . . [] During their tenure as cotrustees, [Dolley] and Mr. Alam-Ahmed attempted to sell the Dolley residence without complying with the provisions of the Trust, and they did sell the Hartsook property.

Matthews specifically alleged in the petition that Alam-Ahmed is not a suitable person to act as cotrustee, as required by the terms of the Trust.

In October of 2004, Dolley and Alam-Ahmed filed a verified response to Matthews petition, and denied wrongdoing. They asserted that Dionisia and Malina were contingent remainder beneficiaries of the Trust, and had no current vested interest in either its income or principal. They noted that the Trust provision which would entitle Dionisia and Malina to current distributions was applicable only if the Trust owned the entire interest in the Hartsook property which it did not, as William Condos had at all relevant times been an equal coowner of the property with the Trust. Dolley and Alam-Ahmed further stated that the Hartsook property had recently been sold, and that the sale proceeds were currently being held in an escrow account pending resolution of unreimbursed expenses for the operation of the property. Dolley and Alam-Ahmed represented they had taken no funds from the Trust as compensation for acting as cotrustees, and Dolley had received no distributions from the Trust.

On November 9, 2004, Matthews moved, ex parte, for an order immediately suspending the powers of the cotrustees, arguing that the money received from the sale of the Hartsook property was in peril. The court granted the ex parte motion, and issued an order temporarily suspending Dolleys and Alam-Ahmeds powers . . . as cotrustees until Matthews petition could be heard and a decision made thereon.

On December 8, 2004, Dolley and Alam-Ahmed filed an ex parte application for an order appointing Kenneth Cummins as interim successor trustee of the Trust. In support of the motion, Dolley filed a declaration setting forth a description of Trust matters requiring a trustees attention, including the fact that the sale proceeds from the Hartsook property remained in escrow, because Condos, the former coowner with the Trust, had made disputed claims against the Trusts distributive share. Additionally, she alleged that Condos mismanagement of the property had generated a lawsuit against the owners, which needed to be answered. The court granted that ex parte request, and appointed Cummins as interim temporary successor trustee.

On April 27, 2005, the parties appeared for trial on Matthews petition. However, according to the record, the court informed them its not going to trial because I settle every case. The court then stated well continue this case until further settlement and the reported proceedings were adjourned.

Then, at some later point in the day, the parties did negotiate a handwritten settlement document. And while the briefs suggest the trial court may have participated to some degree in discussions leading up to that tentative settlement,^[3] our record contains no evidence supporting the fact of, or the degree of, any participation by the court.

The handwritten terms of the parties settlement were as follows:

1. Murshed Alam-Ahmed voluntarily resigns as a cotrustee, without any admission of wrongdoing.

2. All claims for surcharge are dismissed with prejudice against Ahmed.

3. All parties are free to seek fees and costs, including attorneys fees, from the Trust.

4. Dolley shall remain as a consulting cotrustee of the Trust.

5. Kenneth J. Cummins is appointed as administrative and investment cotrustee of the Trust, is responsible for preparing and timely filing all tax returns, accountings and reports required by the Trust and the California Probate Code. He is also responsible for making all Trust investment decisions, subject to the prior approval of Dolley as consulting cotrustee.

6. In the event Kenneth Cummins resigns, withdraws or dies as cotrustee, the Union Bank of California shall be appointed as the administrative and investment cotrustee.

7. Dolley shall maintain and retain the right to sell the primary residence . . . pursuant to section 6.19 of the Trust.

8. Dolley is acknowledged as the primary beneficiary, income and principal, of the Trust, with the power to receive any portion of the principal to meet her needs pursuant to the terms of paragraph 4.2 of the Trust and Probate Code Section 16081, with the understanding that her needs come first.

9. This Agreement was to be reduced to and evidenced by a formal written Settlement Agreement to be signed by all parties and their counsel, and would be entered as a final Court Order.

10. After the death of Dolley, the then acting/remaining cotrustee shall file with the court an accounting; and following approval of such accounting, shall resign as Trustee and Robert Pearson shall then be appointed successor sole Trustee of the Trust.

According to Matthews, this settlement addressed most of the concerns which prompted his original petition; i.e., that Mr. Alam-Ahmed would no longer have any direct access to the Trusts assets, Mrs. Dolley would no longer be able to make investment decisions, and that Mrs. Dolley would not have unfettered access to the Trusts assets. Matthews explained that during the course of settlement negotiations, he had suggested Dolley be relegated to the status of Trustee Emeritus, but had finally agreed to consulting cotrustee on the basis of his belief that the word consulting means that the person is told of certain actions, but does not have the authority to disagree with those actions.^[4]

Dolley declared that at the conclusion of the settlement negotiation, it was her understanding that in her new capacity as consulting cotrustee, she would be consulted in every decision made by Mr. Cummins, and my approval would be required for all substantive decisions. She believed the distinction made between the cotrustees was for the division of labor only. Dolley explained that she understood the purpose of the settlement was to have Mr. Ahmed resign, and to have another competent cotrustee serve with me for the time being. However, if it did not work out between me and the new cotrustee, . . . the Trust gave me the power to remove this cotrustee and appoint another qualified entity or individual and . . . the settlement did not change or alter that right.

The attorneys who were representing Matthews and Dolley during the settlement negotiations also filed declarations, each supporting his clients version of what the settlement had been intended to accomplish. However, none of the four participants in the negotiations cited any specific statements made during those negotiations as a basis for their own interpretation of the final settlement terms.

None of the four declarants who participated in the settlement negotiations claims that those negotiations included any mention of paragraph 6.7, or of Dolleys pre-existing right, as the sole adult beneficiary, to terminate the tenure of a cotrustee she was uncomfortable with, and to select a different cotrustee.

At virtually the same time Matthews and Dolley were negotiating their settlement, Cummins was in the process of filing a cross-complaint for declaratory relief in the pending litigation between Dolley and Condos regarding ownership of the Hartsook property. In that cross-complaint, Cummins, acting in his capacity as interim temporary trustee of the Trust, alleged that the Trust had actually owned three-fourths of the Hartsook property at the time of its sale, and was thus entitled to retain three-fourths of the sale proceeds. The allegations of that cross-complaint were arguably not consistent with the position already taken by Dolley in the main complaint.^[5] Cummins sought declaratory relief and named both Condos and Dolley as cross-defendants.

On May 10, 2005, Dolley reported to the court that at the time she agreed to the settlement, she had not been aware Cummins was pursuing the cross-complaint against her. Given that turn of events, she suggested it would not be appropriate to appoint Cummins to act as her cotrustee as contemplated by the terms of the settlement agreement. She apparently refused to sign any formal stipulation encompassing the settlement terms.

On June 20, 2005, Matthews filed a motion for entry of an order reflecting the terms of the settlement agreement. At the hearing on that motion, Cummins counsel stated that Cummins was unwilling to act as cotrustee with Dolley because he perceives that there are conflicts of interest.^[6]

The parties then discussed various scenarios for resolving the cotrustee dispute, including the possibility of keeping Cummins in place only until resolution of the Condos litigation, and then appointing an institutional trustee to act in his place. The court noted the parties were also in court that day for a mandatory settlement conference, so you can talk to each other and get this worked out.

The court then stated it would grant the motion to enforce the stipulation. Cummins counsel inquired, since youve granted the motion, whos the trustee? The court responded that in accordance with the settlement terms, Cummins was trustee, along with Dolley. When counsel then asked for some definition as to what that means so that Mr. Cummins knows what he is supposed to do, the court suggest[ed] the parties go out in the hall and try to figure out what it means and come back when Im finished with the rest of the calendar. Nothing further took place at the hearing.

On September 28, 2005, the court entered an order reflecting the exact terms of the parties handwritten settlement document, with no changes, alterations, or explanations as to the meaning of those terms. On February 21, 2006, the court signed the exact same order a second time.

On September 23, 2005, Dolley filed a petition to have Cummins removed as cotrustee, based on two distinct grounds: First, she alleged she was entitled to do so unilaterally, based upon her exercise of authority as the sole adult beneficiary pursuant to paragraph 6.7 of the Trust. Second, she alleged Cummins was subject to removal by the court, for cause. Both Cummins and Matthews filed responses in which they opposed the petition.

In March of 2007, Dolleys counsel sent a letter to Cummins counsel, formally notifying him that Dolley had exercised her power to remove him as cotrustee under paragraph 6.7 of the trust, and that Paul Bednarski, identified as a professional local trustee, would be the successor trustee. The letter stated that Bednarski had agreed to act as cotrustee, and enclosed his written acceptance of the position. In response to that letter, Cummins filed a petition for instructions from the court.

On June 12, a trial setting conference was held to address the status of various matters involving the trust, including Cummins petition for instructions, Alam-Ahmeds petition for fees, Dolleys petition to remove Cummins, and Matthews petition for instructions. During the hearing, there was some colloquy between the court and counsel concerning the parties contentions, but the court made no substantive rulings. Instead, the court bifurcated the issues, and scheduled a hearing on July 27, 2007, to resolve the narrow issue of whether Dolley retained the right, as the sole adult beneficiary of the Trust, to remove Cummins as cotrustee pursuant to paragraph 6.7 thereof. The court specifically stayed the issue of whether Cummins was subject to removal for cause.^[7]

At the July 27, 2007 hearing, the court heard arguments from the parties, and then explained that, in its view, the issue in dispute at the time the settlement was reached was whether or not [Dolley] would be removed totally or retain some interest as a cotrustee. The court went on: And, whether or not it was clear by the paperwork that was sent, and the order that was signed, it was clear in the courts mind, and I thought on the paperwork, that Ms. Dolleys involvement in this Trust was to only be in an advisory position with Mr. Cummins, and that was only involving the investments. . . . [] As far as who has control over the assets as the Trustee, that is Mr. Cummins and only Mr. Cummins. . . .[] . . . [] As far as another qualified trustee, certainly, Mr. Cummins was selected as a neutral. There are others who could do it, but it was anticipated that if, in effect, he could not serve as trustee that there was an option, and that was put in the stipulation. [] Ms. Dolley did not retain the power in the trust to remove Mr. Cummins. Her powers as trustee were limited as Ive indicated previously. (Italics added.)

When questioned as to whether its conclusions were intended to simply enforce the earlier settlement, or to impose a new order with more terms, the court replied youre not changing the settlement. That was the settlement. The court then stated when one trustee of a cotrustee has only limited powers, the other trustee has the rest of the powers. Its not reinterpreting. Its not changing the order. Its simply pointing out that Ms. Dolley has limited power as cotrustee. When counsel questioned how an order that gave Cummins a specific list of defined powers, and made one of those powers subject to Dolleys specific approval, could be interpreted as giving Cummins exclusively all the unnamed powers, the court acknowledged so we didnt do it, obviously, as well as it could have been done. The court then terminated the hearing and issued an order decreeing that Denise M. Dolley did not retain the right to remove Mr. Cummins as Trustee.

I

Before considering the merits of the appeal, we must address Matthews contention that the appeal is moot, because Dolley is no longer the sole adult beneficiary of the trust. According to Matthews, Dionisia Matthews, one of Callies daughters, and a named residual beneficiary of the trust, is now 18 years of age, and thus an adult, entitled to exercise an equal vote to Dolleys under the terms of paragraph 6.7. As a consequence, Matthews asserts that Dolley does not presently have the unilateral power to replace a trustee, even assuming her authority under paragraph 6.7 had been unaffected by the parties earlier settlement.

We express no opinion on the issue of whether Dionisia, or Malina when she attains the age of 18, are actually entitled to be treated as beneficiaries under paragraph 6.7 during Dolleys lifetime, as resolution of that issue is unnecessary to our determination that the case is not moot.^[8]

Stated simply, we review court orders to determine whether they were erroneous at the time they were entered, not whether they would be erroneous if entered now. When the order at issue in this appeal was entered, Dionisia was under the age of 18; Dolley was indisputably the sole adult beneficiary of the trust; and she had exercised whatever powers she then had under paragraph 6.7, to remove Cummins as cotrustee. Thus, the sole issue before the trial court was whether paragraph 6.7 was still operative as written at the time Dolley purported to exercise her power thereunder, and thus whether Cummins had been effectively removed as cotrustee in accordance with the terms of the Trust.

Our assessment of that issue has significant consequences for the future operation of the Trust, and thus the issue is not moot. A case is moot when any ruling by this court can have no practical impact or provide [the parties] effectual relief. (Downtown Palo Alto Com. for Fair Assessment v. City Council (1986) 180 Cal.App.3d 384, 391.) Here, because the trial court concluded that Dolley no longer had the power to remove Cummins under paragraph 6.7 at the time she purported to do so, he has continued to exercise authority as cotrustee to the present time and by all appearances intends to continue doing so into the future. Our reversal of the trial courts order, and determination that Dolley retained the power to remove him, will prevent him from so continuing.

II

We next turn to Cummins argument that the courts own interpretation of the settlement is entitled to special weight, because the settlement terms were incorporated into the courts own prior enforcement order and the court has inherent authority to interpret the legal effect of its prior orders. [H]aving been the same judge who made the prior order, he had in mind his own considerations in connection therewith, his actual determination thereon and what he intended to accomplish by the order. (Talman v. Talman (1964) 229 Cal.App.2d 39, 43.)

We are not persuaded. As the trial court made abundantly clear when it informed the parties it would grant the motion to enforce the settlement, its intent was merely to effectuate the specific terms agreed upon by the parties. When the parties informed the court they had some disagreements concerning the application of those terms, the court expressly instructed them to go out in the hall and try to figure out what it means and come back when Im finished with the rest of the calendar.

Our record reflects no further discussions involving the court on that date; and its subsequent formal order simply incorporated the exact language prepared by the parties in their handwritten settlement document, without any changes, additions or clarifications. There is consequently no basis for inferring the court intended to impose its will on the parties at the time it entered the order enforcing the settlement. Indeed, the record demonstrates the opposite is true.

Under these circumstances when the courts order achieved nothing other than to memorialize the terms of the parties handwritten settlement the trial courts interpretation of those settlement terms carries no particular weight. The issue we must address in this appeal is what the parties meant by that settlement because the courts order clearly meant only to enforce that settlement.

And where, as here, the parties argue for different interpretations of their agreement, we apply the analysis set forth in Winet v. Price (1992) 4 Cal.App.4th 1159, 1165: First, the court provisionally receives (without actually admitting) all credible evidence concerning the parties intentions to determine ambiguity, i.e., whether the language is reasonably susceptible to the interpretation urged by a party. If in light of the extrinsic evidence the court decides the language is reasonably susceptible to the interpretation urged, the extrinsic evidence is then admitted to aid in the second step interpreting the contract. . . . [] . . . [T]he threshold determination of ambiguity is subject to independent review.

Here, no party has offered any extrinsic evidence of statements or representations made in the context of negotiating the settlement, which might be relied upon to aid in the interpretation of the settlement terms. Indeed, there are no significant disputes of fact concerning the circumstances in which the settlement agreement was reached. The parties dispute only the effect of the words used, and then each argue why, in the context of the dispute as it existed at the time, their differing subjective interpretation is the more persuasive. With those circumstances in mind, we analyze the language of settlement.

III

Initially, we agree with all parties that the differing titles given to Cummins (administrative and investment cotrustee of the Trust) and Dolley (consulting cotrustee of the Trust), in the settlement are confusing, because neither title can be found in the Probate Code, and neither has an otherwise accepted legal meaning. Hence, the best source for interpreting those titles is the terms of the settlement which created them.

Calling Cummins administrative cotrustee makes sense, because the settlement does expressly assign all administrative duties to Cummins he is specifically obligated to ensure that required reports are made, tax returns are filed, and accountings are performed. However, assigning Cummins the title of investment cotrustee, while Dolley is referred to as consulting cotrustee, simply sows confusion, since despite their differing titles, the settlement terms provide that he and Dolley actually share the power to make investment decisions the only discretionary power expressly mentioned in the settlement.

Under the express terms of the settlement, Cummins is authorized to carry out his investment decisions only with the prior approval of Dolley as consulting cotrustee. (Italics added.) In other words, the settlement itself gives Cummins no individual authority to make investments. In effect, then, the settlement itself belies Matthews assertion that Dolleys consulting title was intended to relegate her to a secondary role in making investment decisions. If Cummins cannot act without her approval, as the settlement provides with pellucid clarity, Dolley has been given, in effect, an equal vote on investment matters.

Of course, as Cummins points out, the settlement agreement does specify, albeit indirectly, that Dolley lacks any discretion to determine the amount of distributions to be made to her as beneficiary although it does so only by acknowledg[ing] that Dolleys power to receive any portion of the principal to meet her needs is governed by Probate Code section 16081. That section provides that if a power to make discretionary distributions of income or principal is conferred upon two or more trustees, the power may be exercised by any trustee who is not a current permissible beneficiary of that power. . . . (Prob. Code,  16081, subd. (c), italics added.) In this respect, the settlement does not impair any preexisting right that Dolley enjoyed under the terms of the Trust, but merely emphasizes that under existing statutory law, the discretionary power to distribute Trust funds to her as beneficiary must be exercised by her cotrustee alone.

Thus, what the relevant terms of the settlement provide is that: (1) Alam-Ahmed will resign, and be replaced with Cummins, who is a professional cotrustee; (2) Cummins is expressly assigned the task of carrying out the administrative responsibilities for the Trust; (3) investment decisions are to be made by agreement between the cotrustees, and then carried out by Cummins; and (4) Dolley is precluded from exercising the discretionary power to determine Trust distributions to herself. And by virtue of those terms, the settlement agreement effectively addressed all of the issues Matthews had identified as his main concerns in the litigation.^[9]

With respect to Cummins tenure as cotrustee, the settlement specifies only what will occur in the event he resigns, withdraws, or dies as cotrustee; stating that if any of those circumstances comes to pass, Union Bank of California shall be appointed as the administrative and investment cotrustee. However, the settlement omits any mention of the possibility that Cummins might also be involuntarily removed from the position, in circumstances short of his death.

As we see it, such a removal could be accomplished in two ways: either by Dolley exercising her power as sole beneficiary under paragraph 6.7 of the Trust, or by the court exercising its own power to do so for cause. (See Getty v. Getty (1988) 205 Cal.App.3d 134, 141-142.) And while we understand that Matthews would now like for us to assume the first scenario was omitted because the parties had implicitly agreed that Dolley would no longer have the right to exercise her power of removal, we certainly could not make that same assumption with regard to the courts power. Instead, the parties failure to make any provision for what would happen if Cummins were forced out, as opposed to resigned, suggests they simply did not include that possibility within the terms of their agreement.

And why would they? Prior to her decision to remove Cummins in the wake of the settlement, Dolley had never attempted to remove a cotrustee. Instead, only Matthews himself had done so twice. After Callies death, it was Matthews who sought the replacement of both Walsh, who had been expressly designated by Callies herself as a default trustee in the Trust, and Alam-Ahmed, as cotrustees. Moreover, it was Dolley who had chosen Cummins in the first place; it thus seems logical that the parties would not have been particularly concerned that she might seek his ouster. And finally, there is no evidence Dolley acted unreasonably when she ultimately did decide that Cummins should be replaced as her cotrustee. At that point, both she and Cummins believed he was operating under a conflict of interest.

In short, there is simply no evidence that Dolley has ever demonstrated an unreasonable penchant for removing her cotrustees either before or after the settlement and thus no basis to infer that the issue should have played a significant role in the parties negotiations. Combine that with the dearth of any evidence that the issue of Dolleys rights under paragraph 6.7 was actually discussed, and we have no choice but to conclude that its omission from the settlement terms means exactly what one might expect that it was not intended to be part of the settlement.

Also, declaring that the settlement agreement negates Dolleys authority under paragraph 6.7 of the Trust is not, as Matthews seems to believe, a straightforward and uncomplicated matter. After all, the provision, as drafted, is not specific to Dolley. Assuming, for purposes of argument, that both of Matthews daughters, Dionisia and Malina, reach adulthood while Dolley is still living, and that both would be entitled to an adult beneficiary vote under the original provisions of paragraph 6. 7, would the settlements purported revision of that paragraph affect them too; or would they, acting together, be viewed as having the authority to remove Cummins?

And what if, in this hypothetical scenario, Matthews two daughters disagreed regarding Cummins removal was the settlement intended to deprive Dolley of any power to cast a tie-breaking vote under paragraph 6.7? Or did the parties simply intend that their settlement would, in effect, delete paragraph 6.7 entirely, depriving Dionisia and Malina, as well as Dolley, from exercising any authority thereunder?

There is no evidence suggesting that any of these questions regarding the effect of the settlement on paragraph 6.7 were even contemplated, let alone resolved, in the context of the parties April 2005 settlement negotiations. Under these circumstances, we cannot see how it can be reasonably concluded that the parties intended their settlement to amend that provision.

IV

Even assuming the court had the legal power to modify the terms of the Trust, or Dolleys exercise of her rights under its terms, there is no evidence the court ever intended to exercise such a power. Indeed, when questioned by Dolleys counsel about this very point at the final hearing, the court made clear it did not intend to base its decision on anything other than its understanding of the settlement terms. The court expressly eschewed any suggestion it was making a new order which incorporated more terms than had been agreed to by the parties in their settlement.

In any event, even if the court had demonstrated an intent to impose some independent modification of Dolleys power under paragraph 6.7 of the Trust at the hearing in July of 2007, that decision would have come too late to prevent Dolley from effectively exercising those rights in March of 2007, which is when she formally notified Cummins of her decision to replace him, and carried out that decision in accordance with the specific requirements of paragraph 6.7. The court cannot make an order which retroactively restricts the rights Dolley had under the terms of the Trust. (People v. $25,000 United States Currency (2005) 131 Cal.App.4th 127, 135 [The turnover order was not the correction of a clerical error in a previous court order, and thus may not be given retroactive effect.]; Hamilton v. Laine (1997) 57 Cal.App.4th 885 [permissible scope of nunc pro tunc orders].)

And finally, there was likewise no evidence that the court had, at any time prior to March of 2007, attempted to impose any distinct restrictions of its own on Dolleys rights under the Trust. As we have already explained, the record makes clear that the court had at all times endeavored merely to facilitate, and implement, the parties settlement.

Because the court never made any independent order restricting Dolleys exercise of her rights under paragraph 6.7 of the Trust, and the parties settlement does not impose any such restriction, Dolley retained the right to exercise those powers in March of 2007. Consequently, we conclude the probate court erred in holding otherwise.

The order is reversed, and the case is remanded to the trial court with directions to enter an order removing Cummins as cotrustee of the Trust, and recognizing the appointment of Paul Bednarski to act in his stead. If, given the passage of time,

Bednarski is no longer able and willing to serve, the court shall appoint a different professional cotrustee of Dolleys choosing. Dolley is to recover her costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.

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^[1] We italicize this phrase because the duality of Dolleys role is central to this case.

^[2] The settlement specifies that Dolley maintains and retains the right to sell her primary residence [owned by the Trust] pursuant to section 6.19 of the Trust.

^[3] We say tentative because the courts minute order, while reflecting that the case has settled, also reflects that the case would remain pending until a stipulation and order have been filed.

^[4] In his declaration, Matthews also explicitly acknowledged that the Trust, as written, gives Dolley significant benefits, while treating Dionisia and Malina as more of an afterthought. However, he then suggests that this could not have been reflective of Callies true intent, since her daughters were the most important people to her. He claims that as a result of chemotherapy treatments and other medications, Callies was experiencing fuzzy thinking during the period of the Trusts creation, and that it was difficult for [her] to complete simple tasks. He also notes that the attorney who drafted the Trust had performed legal services for Mrs. Dolley before preparing the Trust, and hints that the attorney and Dolley may have had conversations or meetings about the Trust without [Callies] being present.

Matthews also claims that during the period of the Trusts creation, Dolley made some very interesting comments that evidenced her attitude toward [Callies] real property and her attitude toward our daughters. Dolley is alleged to have questioned why the daughters were getting so much [property] and to have told each of [the] daughters that they were responsible for making [Callies] sick.

All of these insinuations are wholly improper. If Matthews believed that the Trust was subject to challenge on the grounds that Callies had been subject to undue influence, or was somehow not competent, at the time of its creation, he was free to assert such a challenge at an appropriate time. In this context, however, where Matthews is purporting to enforce and protect his daughters interests under the Trust, such information is wholly irrelevant.

^[5] Our record does not contain all the details of the litigation between Dolley and Condos involving the Hartsook property. However, Dolley represented to the court in this case that she was claiming no interest in either the property itself or in the proceeds from its sale. Instead, she was allegedly claiming that Condos, individually, owed her damages for breaching an agreement to give her an interest in the property. She asserted that she supported the Trusts position, reflected in the cross-complaint filed by Cummins, that the Trust was entitled to three-fourths of the sale proceeds, and claimed to have no idea why Cummins had chosen to sue her.

^[6] As Cummins himself later explained in a declaration, he had initially concluded that due to the totality of the situation, he was not comfortable serving as a cotrustee with Dolley. However, he later changed his mind because he was informed that the Court had appointed me as the Administrative Trustee, and that as such I was responsible for all of the regular duties (with all of the regular powers) of a trustee. It was my understanding that, per the Courts order, Ms. Dolleys role as a cotrustee was limited to being consulted with respect to investment decisions. Cummins does not explain, however, who informed him of this interpretation of the settlement terms, or whether Dolley was present when it was explained.

^[7] Disturbingly, in the wake of the June 12 trial setting conference, Cummins filed a self-serving Notice of Rulings in which he purported to explain that the court had issued specific orders regarding the legal effect of the settlement terms that resulted in Cummins appointment as Administrative and Investment Cotrustee. But the court had done no such thing. Instead, as reflected in both the courts oral statements and its minute order, the court merely scheduled a hearing for future resolution of Dolleys contention regarding her continuing rights under paragraph 6.7 of the Trust exactly what one would expect the court to do at a trial setting conference. Perhaps even more disturbing, Cummins filed a respondents appendix in this court, for the sole purpose of bringing that bogus notice document to our attention.

^[8] As Dolley points out, Dionisia and Malina were entitled to share in Trust benefits during her lifetime only if the Trust owned the entire interest in the Hartsook property which it did not. Otherwise, the Trust specifies that Dionisia and Malina are entitled to benefits only if (1) they survive Dolley, and (2) there is any trust estate left to distribute at the time of Dolleys death.

^[9] According to Matthews, his goals were to ensure that Mr. Alam-Ahmed would no longer have any direct access to the Trusts assets, Mrs. Dolley would no longer be able to make investment decisions, and that Mrs. Dolley would not have unfettered access to the Trusts assets.