Estate of Gill
Filed 2/26/13 Estate of Gill CA6
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SIXTH
APPELLATE DISTRICT
>
Estate of DAVID HENRY GILL, Deceased. ___________________________________ JONATHAN R. GILL et al., Plaintiffs and Appellants, v. BRIAN GILL, Defendant and Respondent. | H037114 ( Super. Ct. No. MP11751) |
This case is the latest chapter in a
series of disputes
family members concerning their late father’s and husband’s revocable
trust. Jonathan and Jason Gill
(collectively, Trustees)—who are the successor cotrustees, as well as
Revocable Trust—appeal from a June 2, 2011 probate order requiring the
liquidation of certain Trust assets to satisfy a prior 2010 judgment awarding
costs and attorney fees in favor of Brian Gill, the former trustee who is also
a beneficiary of the Trust. (Hereafter,
the challenged probate order is referred to as the June 2, 2011 order.)
That prior 2010 judgment was also the subject of an appeal by
Trustees. This court disposed of that
appeal in favor of Brian.
name="_ftnref2" title="">[2] (See Estate
of Gill, May 4, 2012,
H036291 [nonpub. opn.] (Estate of Gill I).)
Trustees claim that the court erred
in granting the June 2, 2011
order, asserting that it was based upon a petition filed by Brian without
affording the beneficiaries and Trustees the requisite statutory notice. Brian responds that the issue of notice was
waived because no objection was asserted below.
(See Western Oil & Gas Assn.
v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 427, fn. 20.) He argues further that the June 2, 2011 order was superseded by a June 23, 2011 order that is not a
subject of this appeal.
We conclude that the appeal is moot
and will therefore dismiss the appeal.
PROCEDURAL
BACKGROUND
I. Prior Litigation
David Henry Gill, the
trustor, passed away in 1990, five months after the creation of the Trust. He was survived by his widow (Elizabeth) and
six children (Brian, Jonathan, Jason, Storm, Constance, and David [now
deceased]). Brian, an attorney
experienced in trust and estate matters, served as the successor cotrustee for
over 17 years after his father’s death.
after disputes arose among the family.
The next month, Jonathan and Jason (appellants) were appointed as
successor cotrustees.
name="_ftnref5" title="">[5]
In November 2008,
Trustees filed a petition to recover funds from Brian that he had disbursed
from the Trust. Trustees alleged that
between 1990 and 2008, Brian had improperly disbursed Trust funds in the form
of unexplained payments, undocumented loans, legal fees, and payments for
personal expenses. The claim, made pursuant
to Probate Code section 16440, was for approximately $55,415 in principal plus
approximately $59,000 in interest.
Trustees alleged further that Brian, on behalf of the Trust, hired an
interior designer, his wife (Kim), to oversee the renovation of a home on Pelican
Road in Pebble
Beach that was a major Trust asset,
and that he overpaid her for those services by approximately $75,000. Brian opposed the petition.
After a four-day trial in June 2010, the court
rejected Trustees’ claims. It held that
(1) Brian had not improperly diverted Trust funds to himself, and (2) the
compensation he had paid to Kim for her services was reasonable. On September
3, 2010, the court entered judgment, which included an award to
Brian of $213,274.18 in attorney fees and costs, a sum that was about $92,000
less than the sum he had requested.
Trustees, in their
challenge of the judgment in Estate of
Gill I, argued that the evidence established that Brian breached his
fiduciary duty to the Trust by, inter alia, making unauthorized payments to
himself and by paying unreasonable compensation to Kim. They also claimed that the court abused its
discretion in awarding Brian his attorney fees and costs. We rejected each of Trustees’ claims. Specifically, we concluded that the trial
court had committed no error in rejecting Trustees’ breach of fiduciary duty
claims alleged in Trustees’ petition (Estate
of Gill I, supra, at pp. 10-20)
and had not abused its discretion in awarding Brian his reasonable costs and
attorney fees associated with defending Trustees’ claims challenging his
administration of the Trust (id. at
pp. 32-33).
title="">[6]
II. Current
appeal
While the prior appeal
was pending, a number of events occurred in the trial court relating to the
September 2010 judgment. On December 1, 2010, the court ordered
Trustees to post a bond of $426,548.36 in order to stay enforcement of the
judgment during the pendency of the appeal in Estate of Gill I. In April
2011, Brian caused a writ of execution to be issued by the superior court to
enforce the judgment. Shortly
thereafter, Trustees filed an ex parte application seeking an order staying
enforcement of the judgment, as well as an order staying other proceedings
before the superior court, asserting that Trustees had recently “learned that
[Brian was] attempting to levy on stock held by the Trust at UBS Financial
Services and to terminate the income distribution due Elizabeth . . .â€
the filing by Brian of a petition for instructions regarding payment of the
judgment; set a briefing schedule; ordered that no liquidation of the UBS
accounts occur in the interim; and stayed enforcement under Code of Civil
Procedure section 680.010.
On May 3, 2011, Brian filed
a petition for instructions (May 3 petition), requesting that the court order
Trustees, inter alia, to liquidate certain Trust assets—namely, the UBS
accounts, silver, coins and currency, and all accounts with financial
institutions—and pay the proceeds to Brian to partially satisfy the judgment.
Trustees asserted, among other things, that Brian’s petition exceeded the scope
of the court’s order; liquidation would interfere with the orderly
administration of the Trust; the Trust had assets well exceeding the amount of
the judgment; and liquidation would interfere with Elizabeth’s
rights to receive Trust income during her lifetime. Declarations by Elizabeth, Constance, Storm,
Jason, Jonathan, and Thomas Gill (David’s executor) were submitted in
opposition to the May 3 petition and two other petitions filed by
Brian.
On May 13, 2011, the court initially heard the May
3 petition and two other petitions filed by Brian and ordered, inter alia, that
the hearing on the May 3 petition be continued.
On June 1, 2011, the
court granted Brian’s May 3 petition, instructing the Trustees to liquidate the
UBS accounts and accounts of the Trust in other financial institutions, as well
as to liquidate “[a]ll numismatic silver, silver coins and currency owned by
the [T]rust.†The court further ordered
that Trustees pay the proceeds from the liquidation to Brian in partial
satisfaction of the judgment. A formal
order was entered on June 2, 2011. It included a requirement that the
liquidation of the UBS accounts and payment of the proceeds occur by June 6, 2011. Trustees filed a notice of appeal from the June 2, 2011 order on June 6, 2011.
III. Subsequent Proceedings
Proceedings relevant to
this appeal occurred after the entry of the June 2, 2011 order.
13, 2011, Brian filed an application to hold Trustees in contempt
based upon their alleged failure to comply with the June 2, 2011 order in that the UBS accounts had not been
liquidated and no funds had been delivered to Brian in partial satisfaction of
the judgment by June 6, 2011,
as required in the order. The Trustees
opposed the application, arguing, among other things, that the filing of their
appeal had stayed the June 2, 2011
order. The court, after hearing
argument, set the matter for a further hearing to afford the parties the
opportunity to submit further briefing.
On or about June 20, 2011, Brian submitted a
petition seeking an order that Trustees post an undertaking in an amount equal
to at least twice the current value of the UBS accounts, as well as an order
directing that UBS liquidate the accounts and pay the proceeds to Brian by a
specified date. Trustees opposed the petition. The court granted Brian’s petition on June 23, 2011. It ordered UBS to liquidate the UBS accounts
by 5:00 p.m. on July 1, 2011. In a separate order also dated June 23, 2011, the court required
Trustees to post a bond of $176,000 “by 5:00
p.m. on June 30, 2011,
if they wish the Court’s order of [June
2, 2011,] insofar as it directs liquidation of the U.B.S. Accounts
pending appeal, be stayed.â€
name="_ftnref11" title="">[11]
DISCUSSION
I. Whether Appeal Is
Moot
After briefing was
completed, this court asked the parties to address whether the case should be
dismissed on the ground that it is moot.
Specifically, we noted that the present appeal was based in part upon
the lack of finality of the September 2010 judgment, and that we had
subsequently affirmed that judgment in Estate
of Gill I on May 2, 2012. We observed further that we had “denied
appellants’ petition for writ relief or for a temporary stay relative to an
order of June 23, 2011, in
which the trial court again ordered liquidation of certain Trust assets absent
the filing of a bond. (
H037093.) In light of these proceedings,
this court questions whether actions (if any) taken in compliance with the June
2, 2011 order requiring liquidation of Trust assets to partially satisfy the
judgment may have rendered the issues in this appeal moot.†We therefore requested that the parties
submit letter briefs on the subject of mootness.
We have been advised by
Brian in his letter brief that “[t]he Trust’s UBS accounts were in fact
liquidated and the proceeds ($87,850.56) were given to Respondent Brian Gill in
partial satisfaction of the Judgment.â€
Brian argues that the present appeal is moot because (1) Trustees’
argument herein that the court should not have permitted collection efforts
because their prior appeal of the judgment automatically stayed the judgment
was rendered moot by the filing of our opinion in Estate of Gill I affirming the underlying judgment; (2) the June
23, 2011 order to UBS concerning liquidation of the UBS accounts superseded the
June 2, 2011 order, and this court denied Trustees’ writ petition seeking
relief from the June 23, 2011 order; and (3) the liquidation of the UBS
accounts came as a result of the June 23, 2011 order, and since no action was
taken as a result of the June 2, 2011 order, there is no need to consider the
validity of that prior order.
Trustees concede in their
letter brief that the UBS accounts have been liquidated. They also acknowledge that after the
September 2010 judgment became final and Brian filed a petition seeking to hold
Trustees in contempt, they “liquidated the other assets at issue.†Trustees conclude: “As a result of these events occurring
through 2012, the issue on appeal is now moot.â€
Citing Abbott Ford, Inc. v.
Superior Court (1983) 43 Cal.3d 858, 868-869, fn. 8, Trustees suggest
that the appeal may be considered notwithstanding its mootness if it “presents
an issue of recurring public interest or a question of law for which
clarification is needed.â€
In general, appellate
courts will neither decide controversies that are moot nor render decisions on
abstract propositions. (
Dogs for the Blind (1967) 67 Cal.2d 536, 541; see also Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60,
78.) “A case is moot when the decision
of the reviewing court ‘can have no practical impact or provide the parties
effectual relief. [Citation.]’ [Citation.]
‘When no effective relief can be granted, an appeal is moot and will be
dismissed.’ [Citations.]†(MHC
Operating Limited Partnership v. City of
106 Cal.App.4th 204, 214 (MHC Operating
Limited Partnership).) Stated
slightly differently, a case may be moot when “neither a reversal nor an
affirmance will affect the substantive rights of the parties.†(City
of Hollister
Cal.App.4th 455, 479.) A question of
mootness may be raised by the appellate court sua sponte. (Ibid.;
see also Building a Better Redondo, Inc.
v. City of Redondo (2012) 203 Cal.App.4th 852, 865 (Building a Better Redondo, Inc.).)
Thus, for example, where
a city amended a rent control ordinance in compliance with a writ of
administrative mandamus granted by the trial court, that postjudgment action
rendered moot any appellate challenge by the city to the issuance of the writ. (MHC
Operating Limited Partnership, supra,
106 Cal.App.4th at pp. 214-215.)
Similarly, an objector’s CEQA challenge to an environmental impact
report issued in connection with a construction project (which included a
public park) was held moot where, during the pendency of the appeal, the
project was completed and was opened to the public and no effective relief
could be granted to the objector. (
1547-1551 (Santa
Monica
Baykeeper).)
The controversy here, as
argued by Brian and as conceded by Trustees, is moot. Trustees’ challenge to the underlying
judgment—as asserted in the prior appeal and reiterated in the present
appeal—was unsuccessful. While the
instant appeal was pending, we affirmed the judgment in Estate of Gill I. In
addition, the June 2, 2011 order that is the subject of this appeal was plainly
superseded by (1) the June 23, 2011 order requiring Trustees to post an
undertaking of $176,000 by June 30, 2011, in order to stay liquidation of the
UBS accounts which was otherwise ordered to proceed on July 1, 2011, and (2)
the parallel order of June 23, 2011, directing UBS to liquidate those
accounts. Moreover, the parties in their
recently submitted letter briefs stipulate that (1) the UBS accounts have been
liquidated and the proceeds have been paid to Brian in partial satisfaction of
the judgment, and (2) Trustees have liquidated the other Trust assets that were
the subject of the June 2, 2011
order involved in the instant appeal.
Because “ ‘no effective relief can be granted’ †(MHC Operating Limited Partnership, supra, 106 Cal.App.4th at p. 214) to address Trustees’ challenge to
the entry of the June 2, 2011
order, the controversy is moot.
name="_ftnref12" title="">[12]
Trustees propose that we
may decide this case notwithstanding the mootness of the controversy based upon
the case presenting issues of recurring public interest or involving questions
of law requiring clarification. While
the court may decide a case that is otherwise moot when it presents an issue of
continuing public interest (Santa Monica
Baykeeper, supra, 193
Cal.App.4th at p. 1548), this case does not fall within that
exception. In our view, resolution of
the instant controversy—including whether the June 2, 2011 order was improper due to a lack of proper
notice and a fact-specific inquiry regarding whether any notice deficiency was
forfeited by Trustees and the beneficiaries—is unlikely to provide guidance to
litigants in other trust proceedings. We
therefore decline to exercise our discretion to decide the moot issues
here. (See Building a Better Redondo, Inc., supra, 203 Cal.App.4th at pp. 867-868; MHC Operating Limited Partnership, supra, 106 Cal.App.4th at p. 215.)
DISPOSITION
The appeal is dismissed
on the ground that it is moot.
_______________________
Márquez,
J.
WE
CONCUR:
___________________________
Premo,
Acting P.J.
________________________
Mihara,
J.
name="_ftn1" title="">[1]
There have been a total of five separate proceedings before this court.
forenames. We do so as a matter of
convenience and mean no disrespect in omitting their shared surnames.
