Kim v. Kim CA6

Filed 9/14/26 Kim v. Kim 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

DEBORAH KIM, H053035
(Santa Clara County
Petitioner and Respondent, Super. Ct. No. 23PR195704)

v.

SANDRA KIM,

Objector and Appellant.

Sandra Kim and her siblings Deborah and Henry are the primary beneficiaries of
the 1998 Kim Family Trust (Family Trust), which their father Koo Sun Kim and mother
Louise Sonim Kim created. (For the sake of convenience, the rest of this opinion
generally refers to Kim family members by their first names; no disrespect is intended.)
One of the Family Trust’s assets was the parents’ home in San Jose, where Sandra lived
with Louise before Louise’s death in 2023. Afterwards, Sandra refused to leave the
family residence, and Deborah, in her capacity as trustee of the subtrust in which the
residence was held, petitioned for instructions to authorize sale of the residence and
commencement of unlawful detainer and ejectment actions against Sandra. The trial
court granted the petition and issued the requested instructions.
Sandra appeals, arguing that the Family Trust required that the family residence be
distributed in kind to the Kim children as tenants in common. We disagree. As explained
below, we conclude that the Family Trust expressly granted Deborah authority as trustee
to divide the family residence and distribute the childrens’ interests in it by selling the
residence and separating the sale’s proceeds into shares.
Accordingly, the trial court’s instructions are affirmed.
I. BACKGROUND
A. The Family Trust
Koo and Louise Kim had three children: Henry, Sandra, and Deborah. In 1998,
when the Kim children were all over 30 years old, the parents created the Family Trust.
The Family Trust was revokable, and during their joint lifetime, the parents had
the right to receive the trust’s income and distributions of principal necessary for their
welfare, comfort, and happiness as well as the power to direct investments and to
withdraw both principal and income.
After the death of the first parent or settlor, the Family Trust required the trust
estate to be divided into a survivor’s share, a marital deduction share (containing assets
needed to eliminate federal estate taxes), and a nonmarital share. The trust also created
three corresponding subtrusts: the Survivor’s Trust for the survivor’s share, the Qualified
Terminable Interest Property (QTIP) Trust for the marital deduction share, and the
Bypass Trust for the nonmarital share. The Family Trust also provided for creation, as
needed, of additional subtrusts: a disclaimer trust, a sprinkling trust for any underaged
“issue” (grandchildren or further descendants) entitled to distributions, and generation-
skipping trusts to capture tax exemptions.
The subtrusts provided for distribution of the assets held in them after the
surviving settlor’s death. The primary provision is Section 6.4, which addresses the
Bypass Trust. This section provides for three scenarios: where any of the Kim children
survive their parents, where none of children survive their parents but have “issue”
(grandchildren) who do, and where neither the Kim children nor their issue survive the
parents. In the first scenario, Section 6.4 requires the trustee to divide the Bypass Trust’s
remaining assets into “as many shares of equal market value as are necessary to create

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one share for each of the settlors’ children” who outlive the settlors and for each of those
who are deceased but leave issue. Then, any share for a then-living child is distributed
“outright” to the child, and any share for a deceased child is divided into intestate shares
under California Probate Code section 240 and distributed to the deceased child’s living
issue—immediately for issue over 25 years old and for others, after being held in the
sprinkling trust, upon reaching that age.
Other subtrusts incorporate Section 6.4’s distribution provisions. For example, the
Survivor’s Trust gives the surviving settlor the power to designate how to distribute the
trust’s assets after his or her death, but provides that any assets not so designated “shall
be distributed in the manner specified in Section 6.4.” The QTIP, disclaimer, and
sprinkling subtrusts likewise provide for distribution of assets remaining in them in the
manner specified by Section 6.4.
The Family Trust designates the Kim parents as trustees as well as settlors and
empowered them to name other trustees, cotrustees, and successor trustees. The trust also
grants the trustees various powers, including the general powers conferred on trustees
under California law. Importantly for this case, Article Seven, the portion of the Family
Trust concerning trustees, also contains a section concerning the method of dividing
assets into shares: Section 7.16 states that “to satisfy a pecuniary gift or to distribute or
divide trust assets into shares or partial shares, the trustee may distribute or divide those
assets in kind, or divide undivided interests in those assets, or sell all or any part of those
assets and distribute or divide the property in cash, in kind, or partly in cash and partly in
kind.”
Finally, the Family Trust contains a provision, Section 7.14, concerning the family
residence. This section grants the surviving settlor the right to occupy the residence free
of rent and requires the trust to pay its proportion of the mortgage and other expenses.
Section 7.14 also provides for sale of the residence if the surviving settlor no longer
wishes to live there. Finally, Section 7.14(d) provides that, upon the surviving settlor’s

3
death, the trust interest in the family residence shall be distributed according to provisions
governing the subtrust in which that interest is held.
B. Subsequent Events
The father Koo died in 2000, making his wife Louise the surviving settlor and the
Family Trust’s sole trustee. The next year, the trust’s assets were divided into the
survivor’s share, marital deduction share, and nonmarital share, and the corresponding
assets were allocated to the Survivor’s Trust, the QTIP Trust, and the Bypass Trust. The
family residence was placed in the Bypass Trust.
The Family Trust named Deborah as the primary successor trustee, followed by
Sandra, and then Henry. In 2010, Louise again named Deborah as the primary successor
trustee, this time followed by Henry and then Sandra. In 2018 Deborah was named
cotrustee of the Survivor’s Trust and the QTIP Trust, and as Louise’s agent in her
capacity as trustee of the Bypass Trust.
Louise died in 2023.
C. The Dispute Between the Kim Children
After Louise’s death, a dispute developed between Sandra and her siblings.
Sandra had moved into the family residence in 2016, both to take care of Lousie and
because of her own financial issues. After Louise’s death in 2023, the Kim children
agreed that Sandra could live in the family residence, rent-free, for one year. However,
after that year expired, Sandra refused to leave the residence and informed her siblings
that she intended to remain but would not buy them out or pay rent.
D. The Proceedings Below
In September 2023, Deborah petitioned for an order confirming her as the trustee
of the Family Trust as well as the Bypass Trust, which the trial court issued in May 2024.
Afterwards, Deborah sent Sandra a letter requesting that Sandra vacate the family
residence so that it could be prepared for sale. When Sandra did not vacate, Deborah

4
petitioned for instructions to authorize sale of the residence and commencement of an
unlawful detainer action against Sandra. Henry consented to the requested instructions.
In her petition for instructions, Deborah asserted that the family residence was in
disarray due to Sandra. According to Deborah, Sandra had filled two bedrooms with bags
of paper, unopened mail, books, clothes, and personal belongings; Sandra was sleeping
on a mattress with no sheets and pillows with no pillowcases; and rotting food filled the
residence’s two refrigerators. The petition also represented that Deborah and Henry did
not want to live in the residence with Sandra and would receive no benefit if they owned
it as tenants in common. Indeed, the petition continued, even if the residence were rented
to a third party, the difficulties that Deborah and Henry had with Sandra would “make it
unworkable for them to be in business with Sandra as the co-owners of a rental property.”
The petition therefore represented that, if Deborah and Henry were tenants in common
with Sandra, they would “immediately commence a partition action to force a sale of the
Property and the distribution of the sale proceeds.” Finally, the petition stated that Sandra
owned two condominiums in Utah and that the Family Trust would make a preliminary
distribution of $20,000 to her and the other beneficiaries.
Sandra objected to the requested instructions. She argued that the Bypass Trust
had not been properly created, that Section 7.16 only addressed pecuniary gifts and did
not authorize the trustee to sell the family residence, and that Section 6.4(a) required that
the family residence be distributed in-kind to the Kim children as tenants in common.
In November 2024, the trial court held a hearing on the petition for instructions.
After objecting to the characterization of her cleanliness, Sandra agreed “to withdraw any
and all factual allegations and just focus on solely legal arguments.” At the hearing’s
conclusion, the trial court found that Section 7.16 granted Deborah as trustee of the
Bypass Trust discretion to sell the family residence and distribute the sale’s proceeds in
cash. The court rejected Sandra’s contention that Section 6.4 required in-kind
distribution of the residence, reasoning that the section instructed the trustee to divide

5
assets into equal shares and distribute those shares but did not say whether the shares are
to be in kind or in cash.
In January 2025, the trial court issued a written order. The order found that the
family residence was an asset of the Bypass Trust, that Sandra was not an owner of the
residence, and that as the Bypass Trust’s trustee Deborah had discretion to sell the
residence and distribute the sale’s proceeds in cash. In reaching this last conclusion, the
trial court determined that neither Section 6.4 nor Section 7.14 requires the family
residence to be distributed in kind. Instead, the court concluded, Section 7.16 grants the
trustee discretion to decide whether to distribute assets in kind or to sell assets and
separate the sale’s proceeds into shares. Accordingly, the trial court authorized Deborah
as trustee of the Bypass Trust to sell the family residence and to commence unlawful
detainer and ejectment actions against Sandra.
Sandra filed a timely notice of appeal.
II. DISCUSSION
A. Sale of the Family Residence
Sandra argues that the trial court erred in authorizing Deborah, in her capacity as
trustee of the Bypass Trust, to sell the family residence and distribute sale’s proceeds.
Sandra contends that the Family Trust instead required the trustee to distribute the
residence in kind to her and her siblings as tenants in common. Because the trial court’s
interpretation of the trust was based solely on its text, we review that interpretation de
novo. (Burch v. George (1994) 7 Cal.4th 246, 254; Städel Art Museum v. Mulvihill
(2023) 96 Cal.App.5th 283, 294 (Städel Art Museum).) As explained below, we agree
with the trial court that the Family Trust grants the trustee discretion to select the method
of dividing and distributing assets, including whether to sell the family residence and
separate the sale’s proceeds into shares.

6
1. Background Principles
In construing trusts, “ ‘ “the court must, if possible, ascertain and effectuate the
intentions of the trustor or settlor.” ’ ” (Städel Art Museum, supra, 96 Cal.App.5th at
p. 293; see also In re Estate of Cairns (2010) 188 Cal.App.4th 937, 944 (Cairns) [“ ‘ “In
construing trust instruments, as in the construction and interpretation of all documents,
the duty of the court is to first ascertain and then, if possible, give effect to the intent of
the maker.” ’ ”].) “The intention of the transferor as expressed in the instrument controls
the legal effect of the dispositions made in the instrument.” (Probate Code, § 21102,
subd. (a).) As a consequence, “if the court can ascertain the testator’s intent from the
words actually used in the instrument, the inquiry ends.” (Trolan v. Trolan (2019) 31
Cal.App.5th 939, 949 (Trolan).)
However, “where the intention of the transferor is not indicated by the
instrument,” the Probate Code’s rules of construction apply. (Probate Code, § 21102,
subd. (b).) Under these rules, “[a]ll parts of an instrument are to be construed in relation
to each other and so as, if possible, to form a consistent whole.” (Id., § 21121.) In
addition, “[t]he words of an instrument are to receive an interpretation that will give
every expression some effect, rather than one that will render any of the expressions
inoperative.” (Id., § 21120.)
2. Section 7.16
Section 7.16 expressly grants the trustee discretion to select one of several
methods for dividing and distributing assets, including liquidating the assets by selling
them and then distributing the proceeds. Moreover, this discretion is consistent with the
overall structure of the Family Trust and the likely intent of Koo and Louise Kim, the
trust’s settlors.
a. The Text
Section 7.16 plainly grants trustees discretion to sell trust assets and separate the
sale proceeds into shares. The section authorizes trustees to divide assets using three

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methods: “In order to . . . distribute or divide trust assets into shares or partial shares, the
trustee may [1] distribute or divide those assets in kind, or (2] divide undivided interest in
those assets, or [3] sell all or part of those assets and distribute or divide the property in
cash, in kind, or partly in cash and partly in kind.” Moreover, the section does not limit a
trustee’s ability to choose between these methods. Accordingly, the section expressly
grants trustees general discretion to divide trust assets by selling the assets and separating
the sale proceeds into shares. (Cairns, supra, 188 Cal.App.4th at p. 948)
b. Overall Structure
This interpretation is consistent with the overall structure of the Family Trust
because nothing in the Family Trust’s provisions concerning subtrusts and the family
residence restricts the trustees’ discretion under Section 7.16 to divide the assets in the
subtrusts by selling those assets and separating the sale proceeds into shares. To the
contrary, Section 7.16 complements the distribution provisions in the subtrusts by
addressing an issue—the method for dividing assets—that the provisions do not.
Section 6.4, which addresses distribution of the Bypass Trust’s assets, does not
restrict a trustee’s discretion under Section 7.16 to choose the method for dividing assets.
Section 6.4 addresses how to allocate the Bypass Trust’s assets and when to distribute
them. For example, the section provides that, if any of the Kim children survive their
parents, the trust’s remaining assets shall be divided into “shares of equal market value”
for the surviving children and any children who have died but have surviving issue. It
also provides that each such share shall be distributed “outright” to any then-living child
and provides instructions for distributing the share to the issue of any child who has died
but left surviving issue. However, Section 6.4 says nothing about methods for dividing
the trust’s assets into these shares. As a consequence, Section 6.4 is consistent with the
discretion granted by Section 7.16 over the method for dividing assets into shares.
Section 7.16 is also consistent with the distribution provisions for the other
subtrusts. Indeed, the provisions concerning three subtrusts state that the assets

8
remaining in them after the surviving settlor’s death shall be distributed “in the manner
specified in Section 6.4.” Although the Surviving Settlor’s Trust allows the surviving
settlor to designate beneficiaries by will or other notarized documents, it also provides
any assets not so designated “shall be distributed in the manner specified in Section 6.4.”
Moreover, like Section 6.4, none of the distribution provisions in the subtrusts address the
methods by which assets may be divided. As a consequence, like Section 6.4, the
distribution provisions in the other subtrusts are consistent with Section 7.16’s grant of
discretion over the division of trust assets.
Finally, Section 7.16 is consistent with Section 7.14, the family residence
provision. In addition to giving the surviving settlor the right to occupy the family
residence, requiring the Family Trust to pay some of the mortgage and other expenses of
the residence, and providing for sale if the surviving settlor prefers to live elsewhere,
Section 7.14 provides that the trust’s interest in the family residence “shall be distributed
in accordance with the applicable provisions of the trust or trusts in which the interest or
interests are held, as set forth in Article Six of this trust instrument.” However, there is
no mention of the method by which the personal residence should be divided into shares.
Consequently, like Section 6.4 and other subtrust provisions that the section invokes,
Section 7.14(d) is consistent with the authority over the methods for dividing assets into
shares granted in Section 7.16.
Accordingly, reading the Family Trust “to form a consistent whole” (Probate
Code, § 21121), Section 7.16 complements the trust’s provisions concerning subtrusts
and the family residence by providing a general method for dividing assets, including the
family residence, into shares.
c. Likely Intent
This interpretation makes practical sense, and thus the likely intent of Koo and
Louise Kim in creating the Family Trust, because it avoids creating unnecessary

9
tenancies in common and the waste and inefficiency frequently associated with such
tenancies.
As Sandra recognizes, if undivided interests in the family residence were
distributed to the Kim children, the beneficiaries would receive tenancies in common.
(Civ. Code, § 686; see also Wilson v. S.L. Rey, Inc. (1993) 17 Cal.App.4th 234, 242 [“If
an estate is conveyed or transferred and it is not expressly declared an estate in joint
tenancy . . . , or an estate in partnership . . . , it will be held by the grantees or transferees
as tenants in common.”].) However, tenancies in common frequently prove unworkable
because “ ‘each tenant in common has the right to occupy the whole of the property’ ”
(Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422), and because, absent unanimous
consent, cotenants lack authority to take important actions such as conveying easements,
mortgaging the property, contracting with third parties concerning the property, and
settling claims concerning it. (See, e.g., East Shores Co. v. Richmond Belt Ry. (1916) 172
Cal. 174, 178 [easements]; Lindsay-Field v. Friendly (1995) 36 Cal.App.4th 1728, 1734-
1735 [contract]; King v. Oakmore Homes Ass’n. (1987) 195 Cal.App.3d 779, 783
[mortgaging, contracting, and settling claims].) It is true that cotenants are entitled to
bring partition actions to protect their individual interests. (Lazzarevitch v. Lazzarevich
(1952) 39 Cal.2d 48, 50; see Code Civ. Proc., § 872.210, subd. (a)(1).) However,
partition actions are subject to extensive statutory requirements (Code Civ. Proc.,
§§ 872.010-874.323), and frequently involve trials (id, §§ 872.610-872.840) or
appointment of referees (id., § 873.010, subd. (a)). As a consequence, partition actions
can be time-consuming and expensive, particularly in cases involving multiple heirs.
(See, e.g., Rothermich, Partitioning Real Property (2002) 70 Appraisal Journal 283, 283-
284.)
Such expense and delay is unnecessary and wasteful where it is apparent in
advance that tenancies in common will prove unworkable. Here, Deborah not only
represented that in light of the difficulties between Sandra and her siblings tenancies in

10
common would be unworkable; she also said that, if the family residence were distributed
to them as tenancies in common, she and Henry “would immediately commence a
partition action.” We see no reason why Koo and Louise Kim would have intended to
require that the family residence be distributed in kind in such a situation and force their
children to undergo the unnecessary expense and delay of a partition action where it was
apparent in advance that tenancies in common would be unworkable. Nor has Sandra
offered any reason why her parents would have wanted to hamstring the trustee in such a
manner.
Consequently, the likely intent of the settlors, the plain language of the trust, and
its structure all point to the same conclusion: Section 7.16 grants the trustee discretion
over the method for dividing and distributing trust assets, including selling the family
residence and distributing the sale’s proceeds.
3. Sandra’s Arguments
Sandra asserts that Section 7.16 is either inapplicable to the family residence or
trumped by more specific provisions in the Family Trust. These arguments are
scattershot in nature, and many are not properly raised. Moreover, none are persuasive.
a. Section 6.4(a)
Sandra contends that Section 6.4(a) requires “in-kind distribution” of the family
residence to her and her siblings as tenants in common. However, Sandra fails to offer
any meaningful argument in support of her assertion, and for that reason alone the
assertion fails. (See, e.g., In re Phoenix (2009) 47 Cal.4th 835, 845 [“Contentions
supported neither by argument nor by citation of authority are deemed to be without
foundation and to have been abandoned.”]; People v. Williams (1997) 16 Cal.4th 153, 206
(Williams) [“Points ‘perfunctorily asserted without argument in support’ are not properly
raised.”].)
In any event, Section 6.4(a) plainly does not require that the Bypass Trust’s assets
be distributed in kind. The section provides that, if any of the Kim children survive their

11
parents, the trustee shall divide the trust’s assets into “as many shares of equal market
value as are necessary to create one share for each of the settlors’ children.” Section 6.4
makes no mention of how the Bypass Trust’s assets are to be divided into these shares.
By contrast, Section 7.16 expressly addresses how the trustee may “divide trust assets
into shares,” and, thus, appears specifically to contemplate creation of shares under
Section 6.4(a).
Citing Trolan, supra, 31 Cal.App.5th 939, and Städel Art Museum, supra, 96
Cal.App.5th 283, Sandra asserts that this court does not have authority to compel the
trustee to sell trust property if the trust does not mandate the sale. That may be true.
However, the issue in this appeal is not whether the Family Trust mandates sale of the
family residence, but rather whether it mandates distribution of the residence in kind to
the Kim children as tenants in common. Sandra fails to explain how the trust does that.
Instead, she asserts that the trust “contains no provision allowing the Trustee the
discretion to sell the Property.” In fact, as shown above, Section 7.16 expressly grants
the trustee that discretion.
b. Section 6.4(b)
Invoking the principle that specific provisions govern general ones (see Trolan,
supra, 31 Cal.App.5th at p. 953), Sandra asserts that Section 6.4(b) requires the trustee to
distribute the family residence in kind as tenancies in common. However, other than
highlighting language in Section 6.4(b) requiring that shares created under Section 6.4(a)
for a still-living child “ ‘shall be distributed outright to that child’ ” (boldface omitted),
Sandra fails to explain how Section 6.4(b) compels distribution in kind of the family
residence or any other trust asset. Such undeveloped assertions are inadequate. (See,
e.g., In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 (Falcone &
Fyke) [“We are not bound to develop appellants’ arguments for them.”].)
In any event, Section 6.4(b) does not help Sandra. The section does not mention
the family residence or address the method for dividing assets into shares. Nor does it

12
address how the assets in the Bypass Trust should be divided into shares. It merely
requires that, if a share is prepared for one of the Kim children and that child remains
alive, the share shall be distributed “outright,” not retained for later distribution as with
some issue under 25 years old.
c. Section 6.4(c)
Sandra also asserts that Section 6.4(c) implicitly bars the trustee from selling the
family residence. In particular, noting that the provision directs the trustee to hold shares
created for any “issue” under 25 years old entitled to distribution, she argues that
Section 6.4(c) implicitly prohibits the trustee from holding the property and, apparently
by extension, from selling it. This argument fails for two reasons.
First, the argument was not properly raised. Sandra did not argue that
Section 6.4(c) precludes the trustee from selling the family residence until her reply brief
on appeal. That is too late. “It is axiomatic that arguments made for the first time in a
reply brief will not be entertained because of the unfairness to the other party.” (People v.
Tully (2012) 54 Cal.4th 952, 1075 (Tully).)
Second, the argument is unpersuasive. Sandra seeks to draw a negative inference
from the absence of any reference in Section 6.4(c) to selling the family reference. She
notes that, while the section instructs the trustee to hold shares for “issue” under 25 years
old, it does not say that the trustee may hold assets in order to sell them and then
distribute the proceeds. However, Sandra does not explain why, in directing the trustee to
hold shares for issue (grandchildren) under 25 years old, the trust would have been
expected to state whether assets may be held for liquidation. As a consequence, no
negative inference can be drawn from the absence of such a statement. (Cf. People v.
Reed (1996) 13 Cal.4th 217, 227 [“ ‘[T]he maxim expressio unius est exclusio alterius is
inapplicable . . . “where no reason exists why persons and things other those enumerated
should not be included, and manifest injustice would follow by not including
them . . . .” ’ ”].)

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d. Section 7.14
In addition to invoking various parts of Section 6.4, Sandra points to Section 7.14,
the family residence provision. Here again, Sandra seeks to draw a negative inference:
She notes that, while Section 7.14(d) discusses how the family residence should be
distributed after the death of the surviving settlor, it does not refer to Section 7.16. And,
here again, she fails to explain why the absent statement would have been expected and,
thus, has not shown that any negative inference can be drawn from the statement’s
absence.
In her reply brief, Sandra invokes Section 7.14(c), which she contends implicitly
prohibits the trustee from selling the family residence. Because Sandra did not raise it
until her reply brief, this argument has been forfeited. (Tully, supra, 54 Cal.4th at
p. 1075.) In addition, the negative inference that Sandra seeks to draw is, once again,
unwarranted. Sandra points out that, while Section 7.14(c) authorizes a surviving settlor
who no longer wishes to live in the family residence to direct the trustee to sell the
residence, it does not authorize the trustee to sell the residence in dividing and
distributing trust assets. However, Sandra fails to explain why, in providing that the
surviving settlor shall decide whether to leave the family residence, Section 7.14(c)
would have been expected to say anything about the trustee’s authority to sell the
residence by dividing it into shares after the surviving settlor’s death.
d. Section 7.16
Sandra argues that section 7.16 does not apply to the Bypass Trust “without a
generation skipping trust provision.” Here again, Sandra’s argument has been forfeited
because she did not raise the argument until her reply brief on appeal. (Tully, supra, 54
Cal.4th at p. 1075.)
Her argument is also unpersuasive. Sandra contends that Section 7.16 applies only
to the QTIP subtrust and generation-skipping trusts because the section’s last sentence
states that it “shall apply only to the extent that it does not conflict with the provision in

14
this instrument specifying allocation of assets involving the marital deduction share”—
which the Family Trust places in the QTIP subtrust—“or with the provision in this
instrument specifying allocation of assets involving generation-skipping trusts.”
However, Section 7.16 begins by describing the methods that a trustee may use to divide
assets into shares without suggesting that this authority is limited to only the QTIP and
generation-skipping subtrusts. If Koo and Louise Kim had intended to limit Section 7.16
to such trusts, they likely would have said so, simply and clearly, at the outset.
Accordingly, we do not understand the final sentence of Section 7.16 to restrict the
section to the QTIP and generation-skipping subtrusts. Instead, we understand it to direct
that the discretion granted by Section 7.16 to divide trust assets into shares shall be
exercised “only to the extent that it does not conflict” with the provisions of the QTIP and
generation-skipping subtrusts designed to avoid unnecessary federal tax liability.
At oral argument, Sandra asserted that Section 7.16 does not apply to “specific”
gifts such as the family residence. Because Sandra made no argument in her briefs
concerning specific gifts, this argument has been forfeited. (See, e.g., In re I.C. (2018) 4
Cal.5th 869, 888, fn. 5 [argument raised for the first time at oral argument is forfeited]).
The argument is also unpersuasive. While Section 7.16 refers to “pecuniary gift[s],” it
does not refer to specific gifts or any similar concept. And Section 7.14, the family
residence provision, does not state that the family residence shall be distributed; it states
that “the trust interest in either the family residence, any proceeding remaining from the
sale of the family residence, or any substitute residence . . . shall be distributed” in
accordance with the provisions of the applicable subtrust. (Italics added.) Thus, contrary
to Sandra’s assertion, nothing the Family Trust suggests that specific gifts in general or
the family residence in particular must be divided and distributed in some special fashion.
f. Extrinsic Evidence
Finally, Sandra asserts that the Family Trust is ambiguous and the trial court
should have permitted extrinsic evidence concerning its meaning. This argument has

15
been forfeited because Sandra did not argue below that the trust is ambiguous or present
any extrinsic evidence concerning its interpretation. (See, e.g., Hewlett-Packard Co. v.
Oracle Corp. (2021) 65 Cal.App.5th 506, 548 [“ ‘ “As a general rule, theories not raised
in the trial court cannot be asserted for the first time on appeal . . . .” ’ ”].) Indeed,
Sandra expressly agreed at the outset of the hearing on the petition for instructions to
focus solely on legal arguments. Moreover, even if Sandra had not forfeited her extrinsic
evidence argument, it would fail because, here again, she has failed to offer any
meaningful explanation in support of her argument. (Williams, supra, 16 Cal.4th at
p. 206; Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)
4. Conclusion
We therefore conclude that Section 7.16 grants the trustee discretion to divide the
family residence by selling it and separating the proceeds into shares. Moreover, as
Sandra has not challenged the trustee’s exercise of this discretion, we uphold the trial
court’s authorization of such a sale.
B. The Unlawful Detainer and Ejectment Actions
In addition to authorizing Deborah, in her capacity as the Bypass Trust’s trustee to
sell the family residence, the trial court authorized her to bring unlawful detainer and
ejectment actions to remove Sandra. Sandra challenges this latter authorization based
solely on her contention that the trustee is required to distribute the family residence in
kind as tenancies in common. As we have rejected that contention, we also reject
Sandra’s challenge concerning the unlawful detainer and ejectment actions.
III. CONCLUSION
The order dated January 9, 2025 is affirmed. Respondents are awarded costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

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____________________________
BROMBERG, J.

WE CONCUR:

____________________________________
LIE, ACTING P. J.

____________________________________
WILSON, J.

Kim v. Kim
H053035