Filed 9/18/26 Estate of Fegan CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
Estate of DANIEL JOHN FEGAN, B350856
Deceased.
(Los Angeles County
Super. Ct. No.
18STPB02917)
ALEXANDRA FRANCESCA
THOMSON,
Petitioner and Appellant,
v.
EDWARD FEGAN et al.,
Respondents.
APPEAL from an order of the Superior Court of Los Angeles County,
Daniel Juarez, Judge. Affirmed.
Baker & McKenzie, Edward D. Totino, Praniet Chopra for Appellant.
Holland & Knight, Jonathan H. Park for Respondent Edward Fegan.
Sheppard, Mullin, Richter & Hampton, Nancy B. Reimann, Valerie E.
Alter for Respondent Leilani Ishikawa.
INTRODUCTION
Alexandra Thomson grew up without knowing who her biological father
was. In 2024, a genealogy report from Ancestry.com suggested that Daniel
Fegan (Daniel)1 was her father. Daniel passed away in 2018, but Thomson
was able to contact some of Daniel’s family members and learned Daniel had
established a trust to which she might have a claim. Nearly a year later,
Thomson hired lawyers to investigate her potential rights and learned that
approximately five months prior, the probate court entered an order
approving a final distribution of assets and closing Daniel’s estate.
Thomson moved to vacate the probate court’s final order, arguing that
she was a reasonably ascertainable heir and that she was denied notice of the
probate court proceedings through extrinsic fraud by the estate’s
administrator and the trustee of Daniel’s trust. The probate court denied the
motion, concluding Thomson was not a reasonably ascertainable heir and
that she had failed to establish extrinsic fraud. Thomson now appeals,
arguing the probate court abused its discretion in denying her motion. We
find no abuse of discretion and affirm.
1 As this action involves multiple members of the Fegan family who
share a last name, we will refer to certain parties by their first names where
necessary in the interest of clarity. No disrespect is intended.
2
FACTUAL AND PROCEDURAL BACKGROUND
I. Daniel Fegan’s Estate
Daniel was a sports agent and lawyer. Daniel had one son, Bradyn
Fegan, born in 2012. As far as the family was aware, at the time Daniel died
in February 2018, Bradyn was his only child.
In 2014, Daniel executed an integrated estate plan consisting of a will
and trust. Daniel’s will named Christen Dudley as the personal
representative of his estate. It also provided that the assets of Daniel’s estate
would be distributed to the trust. At all relevant times, Daniel’s brother,
Edward Fegan, served as the sole trustee of Daniel’s trust.
Following Daniel’s death, the probate court appointed Dudley as
executor of Daniel’s estate. In 2024, Dudley filed a petition seeking an order
distributing the remainder of Daniel’s estate to Edward as trustee of Daniel’s
trust. The petition was heard in December 2024 and granted by the probate
court on January 30, 2025. In its written order, the court approved the final
distribution of estate assets to Daniel’s trust and ordered that “The
administration of this estate is brought to a close.”
II. Thomson’s Potential Claim to Daniel’s Estate
Thomson was born in 1987 in Australia. Thomson was raised by her
mother and was unaware of her biological father’s identity. In April 2024,
Thomson had her DNA sampled and obtained a genealogy report from
Ancestry.com. The report revealed a 25 percent DNA match to Daniel’s
mother, Marlene Fegan. According to the report, there was an 89 percent
chance that Thomson and Marlene were related.
Further internet research led Thomson to a 2018 obituary notice of
Daniel’s death. The notice matched the background information Thomson
3
knew about her biological father, namely that he attended Yale University
and studied law. In May 2024, Thomson sent a letter to Marlene informing
her of their potential familial relationship. The two began corresponding,
which led Thomson to also correspond with Edward.
In July 2024, Thomson traveled to the United States to meet the Fegan
family, including Marlene and Edward. Thomson alleges on the last day of
her trip, Edward told Thomson Daniel had an estate and that Daniel “would
have wanted the estate to be divided equally between” Thomson and Bradyn.
In that same conversation, Edward allegedly told her about Daniel’s trust
and mentioned that he was a trustee.
In May 2025, Thomson retained American legal counsel to determine if
she could obtain a portion of Daniel’s estate.
III. Thomson’s Motion to Vacate
In June 2025, Thomson filed a motion to set aside the probate court’s
January 2025 final order of distribution. In her motion, Thomson claimed
she was one of Daniel’s reasonably ascertainable heirs and was therefore
entitled to receive notice of the probate proceedings under Probate Code
section 8110.2 Thomson alleged that Edward and Dudley failed to provide
her with the statutorily required notice of the hearing on Dudley’s petition for
an order of final distribution.
Thomson raised two arguments. First, she claimed that the January
2025 order was procured through extrinsic fraud because both Edward and
Dudley failed to apprise her of the probate proceedings and failed to advise
the probate court of her status as one of Daniel’s heirs. This extrinsic fraud
2 All further statutory references are to the Probate Code unless
otherwise specified.
4
denied her the opportunity to appear in the probate court and make a claim
to the estate before the final order was issued in January 2025.
Second, Thomson argued that “[e]quitable [c]onsiderations” warranted
setting aside the probate court’s order because otherwise she would face
“irreparable hardship.”
Thomson attempted to show “that she was a reasonably ascertainable
heir, that a fiduciary in probate failed to provide her with statutorily required
notice, and that she could make a claim to the estate were the final
distribution order set aside.” Thomson argued that both Edward and Dudley
“knew of [her] right to the estate.” Thomson argued that she was a
beneficiary of Daniel’s trust and Edward, as the trustee, owed her a fiduciary
duty to disclose her existence to Dudley and/or the probate court. Thomson
also noted that she was in the process of “carrying out DNA testing to confirm
that Daniel Fegan [was], in fact, her biological father.”
Thomson’s declaration described her search for her biological father
and her July 2024 conversation with Edward. Thomson stated that she could
not recall “any further information” about her conversation with Edward.
Bradyn’s mother, Leilani Ishikawa, opposed Thomson’s motion.
Ishikawa argued that Thomson was not a reasonably ascertainable heir
entitled to notice of the probate proceedings under section 8110. She also
argued Dudley had no knowledge of Thomson’s existence or claimed relation
to Daniel before the probate court issued its final order in January 2025.
Ishikawa also asserted that Edward’s knowledge of Thomson was
irrelevant, as Edward did not owe Thomson a duty to provide notice of the
probate proceedings or inform Dudley of her existence. Ishikawa argued that
a trustee’s fiduciary duties only extend to the beneficiaries of a trust, and
Thomson had not established that she was a beneficiary of Daniel’s trust.
5
Finally, Ishikawa argued that Thomson’s request was barred by the doctrine
of laches because Thomson unreasonably delayed in seeking a share of
Daniel’s estate.
Ishikawa’s opposition was accompanied by declarations from Dudley
and Edward. In his declaration, Edward stated that he first learned of
Thomson in May 2024 when she reached out to the Fegan family claiming
she was Daniel’s daughter. Edward “believed that this information was
highly sensitive and personal” for the Fegan family and that “it was
[Thomson]’s news to share with whomever she wished.”
Dudley stated he first learned of Thomson’s existence in May 2025.
Before May 2025, he “had no reason to believe that anyone” was claiming to
be Daniel’s child aside from Bradyn.
Thomson filed a reply in support of her motion. She again argued that
Edward, as the trustee of Daniel’s estate, owed her a fiduciary duty to
provide notice of the probate proceedings and notify Dudley of her potential
claim to Daniel’s estate. She also argued the doctrine of laches did not bar
her motion and reiterated the assertion that the balance of the equities
supported vacatur.
Thomson’s reply raised new arguments not presented in her original
moving papers. For example, Thomson invoked the doctrine of equitable
mistake, arguing for the first time that she mistakenly relied on Edward to
protect her interests rather than obtain her own legal counsel.
Thomson’s reply also put forth new evidence in support of her assertion
of extrinsic fraud. Thomson argued that Dudley “submitted a document
signed by [Edward] that contained a false statement about the beneficiaries
of the trust in what appears to be an effort to have this Court make incorrect
factual findings for use in further proceedings involving the Trust.”
6
Specifically, Thomson pointed to a Receipt for Preliminary Distribution and
Consent filed in November 2024 in which Edward stated that he approved a
January 2023 preliminary distribution of estate assets to the trust because
“it was in the best interests of the Trust and its sole beneficiary, Bradyn
Fegan.” Thomson argued she was also a beneficiary of Daniel’s trust, and
thus Edward’s statement was a misrepresentation constituting extrinsic
fraud.
Despite her earlier claim that she could not recall any additional
details about her July 2024 conversation with Edward, Thomson’s reply was
accompanied by a second declaration providing additional statements
purportedly made by Edward. According to Thomson’s second declaration,
Edward also stated that Thomson was “entitled to a share” of Daniel’s
estate.3 Her new declaration also asserted that, because Edward had
mentioned the existence of Daniel’s estate “alongside the warmth and love of
[her] newly discovered family,” she “trusted that any relevant information or
required actions would be communicated to [her]” and “Edward would be
looking out for [her].”
The probate court denied Thomson’s motion. The court concluded that
the evidence showed that Dudley did not know of Thomson before the
January 2025 order was issued. The court rejected Thomson’s claim of
extrinsic fraud and concluded that her moving papers failed to establish that
she was a beneficiary of Daniel’s trust. The court also denied Thomson’s
request for relief on equitable grounds.
3 At the hearing on Thomson’s motion, Edward’s counsel disputed certain
events described in Thomson’s reply declaration. Specifically, counsel argued
that Edward never told Thomson that she was entitled to half of Daniel’s
estate.
7
Thomson timely appealed the denial of her motion.
DISCUSSION
I. Appealability
Ishikawa argues that we must dismiss Thomson’s appeal as the denial
of a motion to set aside an order in probate court is not an appealable order.
Ishikawa is correct that orders denying relief under Code of Civil Procedure
section 473 are generally not appealable in probate matters. (See Kalenian v.
Insen (2014) 225 Cal.App.4th 569, 576; Probate Code, §§ 1300, 1303.)
However, our Supreme Court has long recognized an exemption to this
general rule under which “one appeal is permitted from an order refusing to
vacate a judgment or decree when, for reasons involving no fault of the
appealing party, he has never been given an opportunity to appeal directly
from the judgment or decree.” (Estate of Baker (1915) 170 Cal. 578, 582.) “In
such cases it is always permissible for the one injured to make himself a
party to the litigation, if he has not been a party, and after he has thus
submitted to the jurisdiction of the court, to move the vacation of the decree
or appealable order injuriously affecting his interest, and to appeal if the
motion be denied.” (Ibid.)
Here, it is undisputed that Thomson had no notice of Dudley’s 2024
petition, the December 2024 hearing on the petition, or the probate court’s
January 2025 order granting the petition. As Thomson’s claims on appeal all
stem from the allegation that she was denied notice of and access to these
probate proceedings because of extrinsic fraud, we conclude that the
exemption to the general rule of non-appealability applies.
8
II. Legal Standards
“We review an order denying equitable relief for an abuse of discretion.”
(Hudson v. Foster (2021) 68 Cal.App.5th 640, 661 (Hudson).) “In doing so, we
determine whether the trial court’s factual findings are supported by
substantial evidence [citation] and independently review its statutory
interpretations and legal conclusions [citations].” (County of San Diego v.
Gorham (2010) 186 Cal.App.4th 1215, 1230.) “‘In assessing whether any
substantial evidence exists, we view the record in the light most favorable to
respondents, giving them the benefit of every reasonable inference and
resolving all conflicts in their favor.’ [Citation.]” (Kramer v. Traditional
Escrow, Inc. (2020) 56 Cal.App.5th 13, 28; accord Hasson v. Ford Motor Co.
(1977) 19 Cal.3d 530, 546, overruled on other grounds by Soule v. General
Motors (1994) 8 Cal.4th 548, 574.) “‘[W]hen the evidence gives rise to
conflicting reasonable inferences, one of which supports the finding of the
trial court, the trial court’s finding is conclusive on appeal. [Citation.]’
[Citation.]” (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 851.)
III. The Probate Court Did Not Abuse Its Discretion
Thomson raises three arguments on appeal. First, she argues that the
probate court failed to consider extrinsic fraud or mistake caused by Edward.
Second, she asserts the probate court erred by failing to consider extrinsic
fraud or mistake by Edward’s counsel. Third, she argues the probate court
failed to consider whether the January 2025 order was the result of her
mistake in trusting Edward to protect her interest in Daniels’ estate.
9
A. Extrinsic Fraud by Edward
Under Probate Code section 8110, the executor of an estate must
provide notice of a petition for administration at least 15 days before the
hearing on the petition. The executor is required to provide such notice to
“Each heir of the decedent, so far as known to or reasonably ascertainable by
the petitioner.” (§ 8110, subd. (a).)
“Extrinsic fraud usually arises when a party is denied a fair adversary
hearing because he has been ‘deliberately kept in ignorance of the action or
proceeding, or in some other way fraudulently prevented from presenting his
claim or defense.’” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471.) “An heir,
devisee or legatee has been held to be under no duty to notify another heir,
devisee or legatee of the death of the decedent, or of the probate proceedings.”
(Stevens v. Torregano (1961) 192 Cal.App.2d 105, 123.) “[A] mere failure to
volunteer information is not fraudulent unless there is a duty to speak.” (Id.
at p. 120.) Accordingly, “silence on the part of a fiduciary, who is under a
duty to speak, is fraud.” (Id. at p. 123.) Similarly, “one who is asked for or
volunteers information must be truthful.” (Id. at p. 120.)
Thomson argues we must find an abuse of discretion by the probate
court because it failed to consider Thomson’s theory of extrinsic fraud by
Edward. We are not persuaded.
Thomson’s argument is belied by the record on appeal. The probate
court’s order and the reporter’s transcript from the hearing on Thomson’s
motion both show that the court considered and rejected Thomson’s theory of
extrinsic fraud. Thomson argued that she was a beneficiary of Daniel’s trust
and therefore Edward owed her a fiduciary duty in his capacity as trustee.
But the probate court expressly concluded that Thomson failed to establish
10
she was a beneficiary of Daniel’s trust. This finding is fatal to Thomson’s
argument that Edward owed her a fiduciary duty as a trustee.
As Thomson bore the burden of establishing her status as a beneficiary
of Daniel’s trust, “‘it is misleading to characterize the failure-of-proof issue as
whether substantial evidence supports the [probate court’s order]. . . . [¶]
Thus, where the issue on appeal turns on a failure of proof at trial, the
question for a reviewing court becomes whether the evidence compels a
finding in favor of the appellant as a matter of law. [Citations.] Specifically,
the question becomes whether the appellant’s evidence was (1)
“uncontradicted and unimpeached” and (2) “of such a character and weight as
to leave no room for a judicial determination that it was insufficient to
support a finding.”’ [Citation.]” (Dreyer’s Grand Ice Cream, Inc. v. County of
Kern (2013) 218 Cal.App.4th 828, 838; accord Patricia A. Murray Dental
Corp. v. Dentsply Internat., Inc. (2018) 19 Cal.App.5th 258, 270.)
Here, the evidence provided by Thomson was not of such weight and
character as to compel the conclusion that she was a beneficiary of Daniel’s
trust as a matter of law. The only evidence put forth on this point was a
genealogy report generated by the website Ancestry.com. The scientific
validity and reliability of this test were not established in Thomson’s moving
papers. Thomson also tacitly acknowledged the insufficiency of the genealogy
report by stating that she was in the process of having DNA testing
performed with an established chain of custody that would confirm her status
as Daniel’s heir. In the face of such evidence, the probate court did not err in
concluding that Thomson failed to establish that she was a beneficiary of
11
Daniel’s trust to whom Edward owed a fiduciary duty in his capacity as
trustee.4
On appeal, Thomson ignores this aspect of the probate court’s ruling.
Thomson provides no argument or authority suggesting that trustees owe
fiduciary duties to non-beneficiaries. “It is the parties’ responsibility to
support claims of error with meaningful argument and citation to authority.
[Citations.] When they do not furnish legal argument with citation to
authority on a particular point, we may treat the point as forfeited and pass
it without consideration. [Citations.]” (Shaw v. Los Angeles Unified School
Dist. (2023) 95 Cal.App.5th 740, 754 (Shaw).)
In other words, Thomson’s moving papers effectively conceded that she
did not establish that she was a beneficiary of Daniel’s trust. Therefore,
Thomson failed to establish that Edward owed her a fiduciary duty stemming
from his role as trustee.
For the first time on appeal, Thomson argues that Edward owed her a
fiduciary duty arising from a special or confidential relationship. Thomson
forfeited this argument by failing to raise it in the probate court. (See
Premier Medical Management Systems, Inc. v. California Ins. Guarantee
Assn. (2008) 163 Cal.App.4th 550, 564 (Premier Medical).)
The argument also fails on its merits. Thomson is correct that a
fiduciary duty may arise from a confidential or special relationship between
parties. “When a person places confidence in another person, the person who
voluntarily accepted the confidence cannot take any advantage from acts
undertaken for the other party without the knowledge or consent of that
4 For this same reason, we reject Thomson’s argument that Edward
committed extrinsic fraud by representing to the probate court and Dudley
that Bradyn was the sole beneficiary of Daniel’s trust.
12
party.” (Hudson, supra, 68 Cal.App.5th at p. 663.) But the law on this point
is settled; a confidential relationship is only found where one party places
their confidence in another party, and “the latter voluntarily accepts or
assumes to accept the confidence.” (Pierce v. Lyman (1991) 1 Cal.App.4th
1093, 1101–1102; accord Estate of Sanders (1985) 40 Cal.3d 607, 615.)
Here, Thomson presented no evidence or argument below suggesting
that Edward voluntarily accepted her trust or purported to act on her behalf.
Nor is there evidence in the record that Edward was aware that Thomson
placed her trust in him to protect her potential claim to Daniel’s estate.
Thomson’s uncommunicated assumption that Edward would act on her
behalf is insufficient to establish that Edward owed her a fiduciary duty
stemming from a special or confidential relationship.
In the absence of any fiduciary duty to Thomson, Edward had no
obligation to inform Dudley or the probate court of Thomson’s potential claim
to the estate. We find no abuse of discretion in the probate court’s rejection of
Thomson’s theory of extrinsic fraud by Edward.
B. Extrinsic Fraud by Edward’s Counsel
Thomson contends the probate court failed to consider her theory of
extrinsic fraud by Edward’s counsel. But Thomson did not provide any
evidence, argument, or authority suggesting that Edward’s counsel had
knowledge of her existence or an obligation to inform the probate court of her
existence. We agree with Ishikawa that Thomson forfeited this argument by
failing to raise it in the probate court. (Premier Medical, supra, 163
Cal.App.4th at p. 564.)
Thomson’s argument also fails on the merits.
13
Thomson asserts in conclusory fashion that “Edward Fegan’s counsel
had knowledge of Ms. Thomson’s existence and Ms. Thomson’s potential
claims to the probate estate at the time of the hearing on the Final
Distribution Order and failed to disclose to the probate court.” But Thomson
provides no citation to evidence in the record supporting these factual
representations. Instead, Thomson points to the fact that her counsel made
this assertion at the hearing on her motion and that Edward’s counsel “did
not deny the assertion.” This is insufficient to establish that Edward’s
counsel knew of Thomson’s existence before the court entered the January
2025 order. (People v. Kiney (2007) 151 Cal.App.4th 807, 814–815 [“Unsworn
statements of counsel are not evidence because unsworn testimony in general
does not constitute ‘evidence’ within the meaning of the Evidence Code”].)
Nothing in the record suggests that Edward’s counsel knew of
Thomson’s potential claim to Daniel’s estate at any point before the probate
court entered the January 2025 order. This alone is fatal to Thomson’s claim
of extrinsic fraud by Edward’s counsel. Thomson’s argument also fails
because she has provided no authority suggesting Edward’s counsel had a
duty to notify the probate court or Dudley of Thomson’s existence as a
potential heir. For this separate reason, she forfeited the argument. (Shaw,
supra, 95 Cal.App.5th at p. 754.)
C. Mistake
Thomson argues the probate court abused its discretion because it
failed to consider her theories of mistake by Edward, Edward’s counsel, or
Thomson herself. We find no abuse of discretion by the probate court because
Thomson’s theory of mistake was based on evidence and argument presented
for the first time in her reply in support of her motion below.
14
The record on this point is clear. Thomson’s initial moving papers
raised only two arguments: that vacatur was warranted under a theory of
extrinsic fraud and that a balancing of the equities weighed in favor of
vacatur. Thomson’s theory of mistake was raised for the first time in her
reply brief and was based on purported new evidence contained in her reply
declaration.
“The general rule of motion practice, which applies here, is that new
evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218
Cal.App.4th 1522, 1537 (Jay); accord Plenger v. Alza Corp. (1992) 11
Cal.App.4th 349, 362, fn. 8 [new evidence submitted in a reply will only be
considered in exceptional cases and where the opposing party is given an
opportunity to respond].) Ultimately, the decision of whether to consider new
arguments and evidence in a reply is committed to the discretion of the trial
court. (Jay, 218 Cal.App.4th at p. 1538.)
The record before us is silent as to whether Ishikawa or any other party
was given the opportunity to substantively respond to Thomson’s new reply
arguments or evidence.5 The record is similarly silent as to whether the
probate court, in its discretion, declined to consider Thomson’s new
arguments and evidence raised for the first time in her reply. “[T]he
appellate presumptions are in favor of the trial court’s actions if there is a
silent record.” (Jones v. Solgen Construction, LLC (2024) 99 Cal.App.5th
1178, 1192.)6 Similarly, “[t]he general rule is that on a silent record the
5 While the reporter’s transcript from the hearing on Thomson’s motion
indicates that Ishikawa filed objections to Thomson’s reply, those objections
are not included in the appellate appendix submitted by Thomson.
6 Thomson’s reliance on Rappleyea v. Campell (1994) 8 Cal.4th 975
(Rappleyea) is misplaced. Rappleyea noted that “Because the law favors
disposing of cases on their merits, ‘any doubts in applying [Code of Civil
15
‘“trial court is presumed to have been aware of and followed the applicable
law”’ when exercising its discretion.” (Biscaro v. Stern (2010) 181
Cal.App.4th 702, 708.)
Given the silent record before us, we can only presume the probate
court exercised its discretion to disregard Thomson’s second declaration and
the arguments asserted for the first time in her reply. We discern no error in
this decision.7
DISPOSITION
The probate court’s order denying Thomson’s motion to set aside is
affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, P. J.
We concur:
TAMZARIAN, J. DAUM, J.
Procedure] section 473 must be resolved in favor of the party seeking relief
from default [citations].’” (Id. at p. 980.) But Rappleyea did not overrule the
long line of precedent establishing that error will not be presumed from a
silent record. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564;
Jameson v. Desta (2018) 5 Cal.5th 594, 609.)
7 We also reject Thomson’s claim on appeal that the probate court erred
by not allowing her to conduct discovery as she raised this request for the
first time in her reply below. Thomson also forfeited this claim of error by
failing to raise it in her opening brief on appeal. “Points raised for the first
time in a reply brief will ordinarily not be considered, because such
consideration would deprive the respondent of an opportunity to counter the
argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446,
1453.)
16