Filed 9/2/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
DEBRA SANDFORD et al.,
Plaintiffs and Respondents, G064699
v. (Super. Ct. No. 30-2018-
00996238)
MICHAEL SANDFORD,
OPINION
Defendant and Appellant.
DEBRA SANDFORD et al.,
G065223
Plaintiffs and Respondents,
v.
MARK SANDFORD,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Ebrahim Baytieh, Judge. Affirmed in part and reversed in part.
Michael L. Sandford, in pro. per., for Defendant and Appellant.
Hammers Law and Stephen G. Hammers; John L. Dodd &
Associates and John L. Dodd for Defendant and Appellant Mark Sandford.
Gokal Law Group, Abbas Gokal, Ronald V. Larson and Omer A.
Khan for Plaintiffs and Respondents Debra Sandford and Linda Swoish.
* * *
This appeal arises from a dispute between siblings (Debra
Sandford, Linda Swoish, Mark Sandford, Michael Sandford, and Pamela
Baden) over the distribution of a trust.1 The trust calls for equal distributions
to all five siblings, but it contains an equalization provision that permits the
trustee to reduce a beneficiary’s share based on unpaid loans or gifts from the
trust. The trial court relied on this provision to conduct an audit of informal
financial dealings between family members going back 20 years. It then
adjusted Michael’s and Mark’s share of the trust significantly downward,
reflecting what the court determined to be early financial distributions from
the trust. They appealed.
We conclude the trial court erred. The equalization provision
permits a reduction for unpaid loans and gifts, but nothing more. The bulk of
the court’s equalization orders concerned rental and sale proceeds from
properties going back many years. To the extent Michael and Mark engaged
in misconduct in those transactions, the trustee had a cause of action against
them, but the court correctly found that any such causes of action were
barred by the statute of limitations. The court could not circumvent those
1 Debra Sandford, Mark Sandford, Michael Sandford, and their
parents (Jean and Dean Sandford) share the same last name. We refer to all
the siblings and their parents by their first names for clarity and ease of
reference.
2
limitations periods by employing an interpretation at odds with the plain
language of the trust.
On the other hand, we conclude the trial court did not err in
denying Mark’s petition to quiet title to a property called the Center Street
property. The court determined that Mark failed to prove, by clear and
convincing evidence, that a quitclaim deed from him to Jean conveyed bare
legal title without the beneficial interest. To reverse that finding, Mark
would need to demonstrate that the evidence compelled a factual finding in
his favor. We are not persuaded. As to that issue, and the remaining issues
raised in the briefs, we affirm the judgment.
FACTS
I.
DEAN SANDFORD PASSES AND HIS ESTATE IS DISTRIBUTED
Jean was the wife of Dean with whom she had five children, all of
whom were parties to the underlying suit: Michael, Mark, Linda, Debra, and
Pamela2. In 1988, Dean passed away unexpectedly and intestate. Michael,
who is a lawyer, represented Jean in the probate of Dean’s estate. Jean
disclaimed part of her interest in Dean’s half of the community property,
which was then distributed among the five children.
At the time, Jean and Dean owned or had interests in multiple
properties. As relevant to this appeal, those properties included the following:
The “Loretta” property was Jean and Dean’s residence,
purchased in 1963, where all of the children grew up.
2 Pamela settled any claims against her prior to trial. She is not a
party to this appeal.
3
The “Quincy” property was acquired by Jean and Dean in 1976.
After the probate of Dean’s estate, his 50 percent share was divided up
equally among the five children, resulting in each owning 10 percent.
The “Wilken Way” property was a fourplex acquired in 1978.
Dean’s probate order lists his and Jean’s interest as one-third. Dean’s half of
the one-third interest was distributed equally among the children.
The “Center Street” property was acquired in 1983, with Jean
and Dean owning 50 percent, and Mark owning the other 50 percent. In the
probate of Dean’s estate, his 25 percent interest was distributed equally to
the five children.
In later years, Jean acquired two more properties relevant to this
appeal. In 1996, she acquired the “Lakeview property” as her new residence.
In 2000, Jean acquired the “Orange Park property,” which was ultimately
rented out until 2018 when it was sold.
II.
THE QUITCLAIM DEEDS
In 1993, all the siblings signed quitclaim deeds in favor of Jean
regarding their interests in the Center Street property, including Mark, who
owned 55 percent. On the same day the quitclaim deeds were recorded, Jean
refinanced the property. The quitclaim deeds specifically recited that they
were given for “no consideration, inter-family transfer.”
In 1995, a similar series of events transpired regarding the
Quincy property. Again, the quitclaim deeds specifically recited they were
given for “no consideration, inter-family transfer.” On the same day the
quitclaim deeds were recorded, Jean took out a secured loan on the property.
4
III.
JEAN ESTABLISHES A TRUST
In 1998, Jean executed the Jean A. Sandford Trust (1998 Trust),
which nominated Debra, Pamela, and Linda as successor trustees, to the
exclusion of Mark and Michael. However, just two years later, Jean restated
her trust to include all five children as successor trustees. This trust is the
operative trust in this proceeding.3 The trust contains an equalization
provision at the heart of this appeal, which states the following:
“If Trustor has loaned funds to a child or a child’s family, . . . any
unpaid loan shall be distributed as part of that child’s share. If Trustor has
made unequal gifts to Trustor’s children or their respective spouses . . . those
gifts shall be treated as advances toward each child’s equal share and the
Trustee shall make reasonable distribution adjustments to equalize overall
the gifts and inheritance of each child’s share.”
Around that same time, in 1999, Jean deeded 25 percent of the
Quincy property to Mark, and another 25 percent to Michael, returning the
trust to a 50 percent interest.
IV.
THE CHILDREN TAKE OVER FINANCIAL MANAGEMENT
Jean informed Linda around 2001 that she could no longer
balance her checkbook, prompting Linda to manage Jean’s personal accounts.
By 2002, Linda gradually started writing the checks to pay Jean’s bills, which
Jean would sign. Around this time, Linda asked Mark to handle the
checkbooks associated with the rental properties. He was already handling
3 Any nonspecific references to a trust in this opinion are to the
operative trust established in 2000. When we refer to the prior trust, we will
specify the 1998 Trust.
5
other aspects of the properties. By 2003, Linda was writing checks more
frequently because Jean was beginning to have more difficulty.
In 2005, Mark decided to switch the rental accounts for Jean’s
properties to a new bank, but he did not make Jean a signatory on the new
accounts. Mark and his wife were the only signatories. Around that time, he
and Jean decided to refinance Jean’s residence (the Lakeview property). The
purpose of the loan, which was approximately $100,000, was to fix up some of
the rental properties. The funds from that loan were deposited into an
account in Mark’s name. Subsequently, he used those funds for personal
expenses and investments.
Beginning in 2002, the Anaheim School District initiated efforts
to acquire the Wilken Way property by eminent domain, and Michael
represented the family in connection with that proceeding. For the sake of
Jean’s mental stability, Michael initially asked the siblings to conceal the
information from her. The lengthy process culminated with the sale of the
property in 2008. Prior to the sale, Michael informed Jean of the proceedings
and assured her he was taking care of everything. To facilitate the
transaction, Jean purportedly executed a power of attorney in favor of
Michael. However, Jean’s signature was forged, and Michael knew it. The
funds from the sale were deposited into Michael’s law firm trust account. The
net proceeds from the sale were approximately $829,000, which were
allocated according to the following approximate percentages: 16.67 percent
to Jean, 36.67 percent each to Michael and Mark, and 3.3 percent each to
Debra, Pamela, and Linda.
Approximately $58,000 of Jean’s share of the proceeds were
distributed to Linda to pay for Jean’s medical care. Michael claimed to invest
the remainder of Jean’s proceeds from the Wilken Way sale (about $75,000)
6
in another property (the Creekview Property) pursuant to an Internal
Revenue Code section 1033 exchange to avoid capital gains taxes. (26 U.S.C
§ 1033 (section 1033 exchange).) However, Michael later admitted this was
not true and stated that Jean’s approximately $75,000 had actually been
distributed to Mark. Ultimately, Jean’s 2008 tax return was amended to
reflect that the section 1033 exchange never occurred.
Although Jean had been showing signs of dementia as early as
2003, it was not until 2009 that two medical professionals declared she was
no longer competent. At that time, the five children officially became trustees
of the trust. Jean passed away in October 2014.
V.
CONFLICT ARISES AND THE PRESENT PETITIONS ARE FILED
In the leadup to Jean’s death and afterwards, conflict began to
arise among the siblings regarding the finances of the trust. In part, this was
due to suspicions on the part of Debra and Linda stemming from the
incomplete section 1033 exchange of the Wilken Way proceeds and the
disposition of Jean’s funds, and in part it stemmed from a liquidity crisis the
trust faced in which it lacked sufficient funds to pay ongoing expenses.
Debra and Linda initiated the current proceeding in May 2018 by
filing a petition against Michael, Mark, and Pamela. The operative pleading
is the fourth amended petition in which Debra and Linda sought instructions,
an accounting, return of trust property, removal of Michael and Mark as
trustees, an order deeming Michael and Mark to have predeceased Jean, and
asserted causes of action against Michael and Mark for financial elder abuse
and breach of fiduciary duty.
Michael and Mark filed a petition in July 2019. Mark sought to
quiet title to, and declaratory relief for, the Center Street and Lakeview
7
properties, and he sought reimbursement of funds and for services rendered.
Both Mark and Michael sought removal of Debra and Linda as trustees and
for an order amending the education funds trust provisions to conform to the
intention of the trustor.
In March 2020, the court suspended the powers of the cotrustees
and appointed Bruce Hitchman as an independent temporary trustee.
VI.
TRIAL AND JUDGMENT
The trial on Debra and Linda’s petition and Mark and Michael’s
petition lasted 22 nonconsecutive days. At the conclusion of the trial, the
court issued a 64-page final statement of decision and judgment.
Generally speaking, on most contested issues, the court found
Linda and Debra to be credible, and Mark and Michael to be not credible.
With regard to the quitclaim deeds that the children signed in favor of Jean
in the 1990’s for the Center Street and Quincy Properties, the court found the
deeds conveyed both the legal and beneficial interests in the properties to
Jean. The court denied all the relief requested in Mark and Michael’s
petition, including claims for monetary damages, to quiet title, and to remove
Debra and Linda as trustees.
The court ruled against Debra and Linda on their claim for
financial elder abuse. It concluded that Michael and Mark did not take Jean’s
property in bad faith or with the intent to harm her. The court also concluded
the cause of action was barred by the applicable four-year statute of
limitations, as it accrued no later than May 2009 when the children became
trustees, but the petition was not filed until 2018. The court also concluded
the cause of action for breach of fiduciary duty was time-barred.
8
The court found that Michael and Mark took on the duties of
trustee of Jean’s properties starting in 2002, relying on the doctrine of trustee
de son tort.4 The court granted Debra and Linda’s request to remove Michael
and Mark as trustees. It issued an order requiring Michael and Mark to
provide a full accounting of all trust assets in their possession from 2009
through 2020 and to relinquish any such property to the temporary trustee.
The court granted Debra and Linda’s request for an order of attorney fees
against Michael and Mark.
The court denied Debra and Linda’s request for an order deeming
Michael and Mark to have predeceased Jean. And it denied Debra and
Linda’s requests for damages. The court accepted the resignation of Debra
and Linda as cotrustees of the trust and appointed Bruce Hitchman (the
temporary trustee) as the sole trustee.
The court then ordered the trustee to distribute the res of the
trust in compliance with the equalization provision, and the court issued
numerous orders to guide the trustee in its implementation. It ordered
various loans that Michael had failed to repay to be deemed early
distributions. The court ordered that a $60,000 “helicopter loan” from 1993 be
treated as an early distribution to Michael. It assessed another loan against
Michael in the amount of $79,504.21. It ordered that an unpaid 2016 loan to
Michael in the amount of $42,274.16 be deemed an early distribution.
The court also ordered that certain rental and sales proceeds be
deemed early distributions to Michael and Mark subject to the equalization
provision. As to the Wilken Way property, the court ordered that $18,500
4 We discuss this in more detail below. The doctrine essentially
creates a constructive trustee where a person voluntarily undertakes
management of another’s property.
9
paid from the sale proceeds to Mark for work on the property be treated as an
early distribution. It ordered that rental proceeds between 2002–2008 be
treated as early distributions to Michael and Mark, in the amount of
$107,537.50 each. As to Center Street, the court ordered that rent collected
by Mark from 2002 through 2020 be treated as an early distribution in the
amount of $537,930. As to the Quincy Property, the court ordered that half of
the rental proceeds between 2002–2024 be treated as early distributions to
Michael and Mark in the amount of $145,620 each. As to the Orange Park
property, the court ordered that all rental proceeds from 2002 through 2018
be treated as an early distribution to Mark in the amount of $601,560.
Finally, the court ordered the trustee to pay Debra and Linda’s
attorney fees. Michael and Mark appealed from the judgment. 5
DISCUSSION
Michael’s and Mark’s appeals raise many issues, which we have
organized into four groups. First, they claim that the court’s resolution of
many of the contested claims should have been in their favor because the
statutes of limitations had elapsed. Second, they claim that the court erred in
ruling that the quitclaim deeds the siblings signed conferred both legal and
beneficial title to Jean. Third, Mark contends the court erred by calculating
his early distributions as the gross rent of the properties he managed rather
than the rent net of expenses. In the final part of the opinion, we will address
some miscellaneous issues raised in the briefs, including attorney fees.
5 The trustee, Bruce Hitchman, also appealed from the judgment.
However, he later abandoned his appeal.
10
I.
STATUTE OF LIMITATIONS AND THE EQUALIZATION PROVISION
A. Statute of Limitations
Mark and Michael contend that essentially all of Debra and
Linda’s claims were barred by the applicable statutes of limitation. They
contend nearly all of the conduct at issue in the petition occurred in the 1990s
through 2012. Moreover, the court found that Debra and Linda were on
notice of Michael’s and Mark’s wrongdoing by 2009. Yet Debra and Linda did
not file the petition until 2018. Accordingly, the claims of wrongdoing were
time-barred.
Michael’s and Mark’s arguments suffer from a number of flaws—
most significantly, they fail to address what cause of action is barred and
which statute of limitations actually applies. The only causes of action
against Michael and Mark personally were for financial elder abuse and
breach of fiduciary duty, which the trial court already found to be time-
barred. The remainder of the court’s orders were simply instructions given to
the trustee pursuant to Probate Code section 17200, subdivision (b)(6).
Probate Code section 17200 authorizes a petition “concerning the internal
affairs of the trust” for the purpose of “[i]nstructing the trustee.” That statute
does not contain a limitations period. Neither Mark nor Michael have
identified any applicable statute of limitations to providing instructions to
the trustee.
Michael’s and Mark’s arguments are best understood as an
assertion that a trustee cannot reduce a distribution to a beneficiary based on
time-barred debts. However, this proposition was rejected in Cook v. Cook
(2009) 177 Cal.App.4th 1436 (Cook). There, a trust provided for equal
distribution among four children, but, similar to the present case, it required
11
the trustee to “‘allocate any debts owed to the settlors to the share created for
the beneficiary owing said obligation.’” (Id. at p. 1439.) The trust attached a
writing reflecting a loan made to one of the children over 10 years prior.
(Ibid.) By the time the trustors died, the debt was about 20 years old, and the
debtor/beneficiary argued it could not be offset against his share because the
statute of limitations had run on the debt, and thus it was not a debt “owing”
under the trust. (Id. at p. 1440.) The Court of Appeal disagreed. It noted that
“[t]he settlors did not qualify the debts by stating that the trustee must offset
only enforceable debts.” (Id. at p. 1442.) And it distinguished older case law
excluding time-barred debts on the ground that the prior case law “did not
involve a settlor’s or testator’s expressed intent to offset unpaid debts to
implement a testamentary plan to treat each beneficiary equally.” (Id. at
p. 1443.)
We agree with this approach. Within the bounds of legality, a
settlor can distribute her funds however she wishes. (Prob. Code, § 15203 [“A
trust may be created for any purpose that is not illegal or against public
policy”].) If she wishes to alter her distribution based on time-barred debts,
and the trust clearly reflects that intent, there is nothing illegal or
impermissible about that. Broadly speaking, this is the legal framework the
court applied here. That approach avoids running afoul of the statute of
limitations because the court is simply implementing the testator’s intent.
However, it sets up a more fundamental question: what does the trust
actually say?
B. The Court Misinterpreted the Equalization Provision
Generally speaking, the trust calls for equal distributions to the
five children, except it permits a beneficiary’s inheritance to be reduced by
12
operation of the equalization provision. The interpretation of the equalization
provision, therefore, is the fulcrum on which most of the court’s orders turn.
Our task of interpreting the trust begins with the language of the
trust document. “The intention of the transferor as expressed in the
instrument controls the legal effect of the dispositions made in the
instrument.” (Prob. Code, § 21102, subd. (a).) “‘The centerpiece of
interpretation, of course, is the language contained in . . . the trust
document.’” (Stadel Art Museum v. Mulvihill (2023) 96 Cal.App.5th 283, 293.)
“The words of an instrument are to be given their ordinary and grammatical
meaning unless the intention to use them in another sense is clear and their
intended meaning can be ascertained.” (Prob. Code, § 21122.) “In interpreting
a document such as a trust, it is proper for the trial court in the first instance
and the appellate court on de novo review to consider the circumstances
under which the document was made so that the court may be placed in the
position of the testator or trustor whose language it is interpreting, in order
to determine whether the terms of the document are clear and definite, or
ambiguous in some respect.” (Wells Fargo Bank v. Marshall (1993) 20
Cal.App.4th 447, 453.) Unless the trial court’s interpretation of ambiguous
terms turns on the resolution of contested extrinsic evidence, our review is de
novo. (Scharlin v. Superior Court (1992) 9 Cal.App.4th 162, 168.)
The trial court broadly interpreted the equalization provision to
mean that any financial benefit a beneficiary took from the trust must be
accounted for and deducted from that beneficiary’s share. This resulted in
what amounted to a 20-year audit of informal financial dealings between
family members.6
6 With regard to the family’s pattern of informal financial
dealings, the court noted: “For decades, when it came to Jean’s assets and
13
However, the text of the equalization provision does not, on its
face, permit the broad-ranging investigation the trial court conducted.
Instead, its plain language is focused on loans and gifts. It states, “If Trustor
has loaned funds to a child or a child’s family, . . . any unpaid loan shall be
distributed as part of that child’s share. If Trustor has made unequal gifts to
Trustor’s children or their respective spouses . . . those gifts shall be treated
as advances toward each child’s equal share and the Trustee shall make
reasonable distribution adjustments to equalize overall the gifts and
inheritance of each child’s share.” The ordinary meaning of the words in this
provision requires an adjustment for unpaid loans and for gifts, and nothing
more.
In concluding otherwise, the trial court relied on circumstances
surrounding the execution of the trust, which were as follows. In 1993, one of
Michael’s companies had borrowed $100,000 from Jean. In 1994, Michael had
borrowed $60,000 from Jean to invest in a helicopter-related investment.
Separately, in 1993, Michael and Mark collectively borrowed $40,000 from
Jean. David Swoish (Linda’s husband) testified that in 1996, Jean had a
conversation with David in which she broke down in tears and asked David
to protect her from Michael and Mark because they had borrowed over
$100,000 from her individual retirement account (IRA) and had not paid it
back. David then had a conversation with Mark where he relayed Jean’s
concerns and Mark agreed to pay the money back. Marr Leisure, Jean’s
financial advisor, testified that Jean’s IRA faced liquidity problems around
1996. As a result of her age, she was required to take distributions, but there
income, the members of the Sandford family, including Debra and Linda,
conducted themselves in an informal way that certainly flew in the face of the
rigid guidelines of accounting principles and arms-length transacting.”
14
was little liquid cash due to the loans Michael had taken from her account.
Jean told Leisure that she wanted to divide her estate evenly between her
children, but wanted to reduce Michael’s and Mark’s shares based on the
unpaid loans they owed her. After Leisure spoke with Michael, some of the
loans were repaid, and in 1997 her IRA regained sufficient liquidity. Debra
testified that in 1998, around the time of the 1998 Trust, Jean told her that
she was disappointed in Mark and Michael for not repaying the loans she
gave them, and that was the reason she did not initially name them as
successor trustees. The estate planning attorney who drafted the 1998 Trust
(James MacDonald) sent Jean a letter in 1998 describing the trust as
“accomplish[ing] your objectives of making sure that the loans you have
advanced to the boys are allocated to their shares . . . .” Jean’s estate
planning attorney in connection with the operative trust, Scott Richmond,
testified that Jean discussed the loans that Michael and Mark had taken out,
and she expressed frustration that all of her financial assistance was going to
Mark and Michael, but not Debra, Linda, and Pamela.
These circumstances introduce no ambiguity to, and are entirely
consistent with, the plain language of the equalization provision. The
evidence demonstrated that Jean was focused on unpaid loans at the time
she executed both trusts. The plain language of the equalization provision
clearly reflects that intent.
Because the trial court’s interpretation went well beyond the
plain language, and no factual circumstances warranted departing from the
plain language, the court erred. The equalization provision applies to loans
and gifts, and nothing more. The bulk of the court’s orders in this case
concerned the proceeds of properties—specifically, rental proceeds and sales
proceeds. The equalization provision does not apply to those transactions. To
15
the extent Mark or Michael breached their fiduciary duties in carrying out
those transactions, Jean or a successor trustee would have had a cause of
action against them. But as the trial court found, and as everyone
acknowledges on appeal, the statute of limitations had long since run on such
claims.
Our conclusion is buttressed by yet another finding the trial court
made concerning Jean’s desire to eliminate conflict between the siblings. The
court found, “During her lifetime, [Jean] did her utmost best to eliminate
money-driven conflicts between her five children. [Jean] worked hard to
especially eliminate money-driven conflicts between her children after her
passing. Simply stated, [Jean] did not want her children to fight over her
money after she dies.” In our view, Jean’s intent to eliminate conflicts
between her children is wholly inconsistent with an interpretation of the
equalization provision that mandates a 20-year audit of informal financial
arrangements. If that is what she meant, she all but guaranteed conflict
between the children. As we have concluded above, however, that is not what
she meant. The text of the equalization provision does not support such a
broad mandate. Nothing about the circumstances suggests that she intended
to equalize anything other than loans and gifts, as she plainly stated.
The trial court issued numerous orders in this case, which it
numbered sequentially. We affirm the trial court’s orders pertaining to
unpaid loans—even time-barred loans—under the authority of Cook. Those
include orders 28, 29, and 31. However, we reverse the orders pertaining to
equalization of rental and sales proceeds, which are orders 18, 19, 21, 22, 23,
24, 25, 26, and 30. We also reverse order 20, as it is inconsistent with the
plain meaning of the equalization provision. Because we reverse the court’s
orders pertaining to rental proceeds, we need not address Michael and Mark’s
16
contentions that the court erred by basing its orders on gross rental proceeds
rather than net rental proceeds.
II.
TITLE ISSUES
Michael and Mark challenge the trial court’s findings that certain
quitclaim deeds transferred full beneficial ownership of properties to Jean.
One of those properties in dispute, the Wilken Way property, is moot in light
of our holding above. It was sold in 2008 and the proceeds were distributed
around that time. Any cause of action concerning those proceeds is
time-barred, and the equalization provision does not apply because the
proceeds were not loans or gifts.
We also need not address the Quincy property. Although Michael
purports to appeal from the trial court’s orders regarding the Quincy
property, his entire discussion of the evidence pertains only to the Wilken
Way property. He occasionally lumps those two properties together in his
briefing, but his failure to discuss the evidence concerning Quincy results in a
forfeiture on appeal. (Alki Partners, LP v. DB Fund Services, LLC (2016) 4
Cal.App.5th 574, 589 [“An appellant who fails to cite accurately to the record
forfeits the issue or argument on appeal that is presented without the record
reference”].) The imposition of a forfeiture is particularly appropriate in a
case with a large record, which, in this case, exceeds 20,000 pages.
That leaves just the Center Street property. Mark contends the
trial court erred in denying his petition to quiet title to Center Street. We
address that property now.
The trial court did not directly rule on the ownership of Center
Street, but it did so by implication, ruling that 100 percent of the rental
proceeds were to be deducted from Mark’s share under the equalization
17
provision. Although that ruling is reversed, the court also ordered the trustee
to liquidate all trust properties, and thus ownership of Center Street is still a
relevant and contested issue.
The trial court ruled that all of the quitclaim deeds produced
during the trial resulted in the transfer of full legal title and beneficial
ownership. In so ruling, the court relied on two statutes. The first was Civil
Code section 1105, which states, “A fee simple title is presumed to be
intended to pass by a grant of real property, unless it appears from the grant
that a lesser estate was intended.” The second was Evidence Code section
662, which provides, “The owner of the legal title to property is presumed to
be the owner of the full beneficial title. This presumption may be rebutted
only by clear and convincing proof.” “The presumption can be overcome only
by evidence of an agreement or understanding between the parties that the
title reflected in the deed is not what the parties intended.” (In re Marriage of
Brooks & Robinson (2008) 169 Cal.App.4th 176, 189–190, italics added,
abrogated on other grounds in In re Marriage of Valli (2014) 58 Cal.4th 1396,
1405.)
Where the presumption of title is overcome, a resulting trust
arises. “‘A resulting trust arises by operation of law from a transfer of
property under circumstances showing that the transferee was not intended
to take the beneficial interest. [Citations.] Such a resulting trust carries out
and enforces the inferred intent of the parties.’” (Fidelity National Title Ins.
Co. v. Schroeder (2009) 179 Cal.App.4th 834, 847.) “The trustee has no duties
to perform, no trust to administer and no purpose to carry out except the
single task of holding onto or conveying the property to the beneficiary.”
(Id. at p. 848.) A resulting trust commonly arises where one party takes title
to property but another furnishes the consideration for it. This is because it is
18
the natural presumption that the person on title holds it for the one who paid
for it. (Estate of Yool (2007) 151 Cal.App.4th 867, 874.)
Because Evidence Code section 662 and the doctrine of resulting
trusts present a factual question regarding the parties’ agreement,
understanding, or intent, we review the trial court’s findings for substantial
evidence. “Under the substantial evidence standard, our review ‘begins and
ends with the determination as to whether, on the entire record, there is
substantial evidence, contradicted or uncontradicted, [that] will support the
[factfinder’s] determination.’ [Citation.] Evidence that supports the judgment
must be accepted, conflicting evidence must be rejected, and all reasonable
inferences must be drawn in favor of the verdict. [Citations.] ‘We do not
review the evidence to see if there is substantial evidence to support the
losing party’s version of events, but only to see if substantial evidence exists
to support the verdict in favor of the prevailing party.’ [Citation.] ‘Even if the
[factfinder’s] findings are against the weight of the evidence, they will be
upheld if supported by evidence that is of ponderable legal significance and
reasonable in nature.’” (LAOSD Asbestos Cases (2026) 118 Cal.App.5th 1041,
1068–1069.)
The substantial evidence test takes on an even more demanding
character when, as here, the appellant bore the burden of proof at trial but
failed to meet that burden. Because the trial court did not make an
affirmative finding of a particular fact, it makes little sense to ask whether
the evidence supported a factual finding. Instead, the court found a failure of
proof. “[W]here 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
19
(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.’” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, italics
added, disapproved on other grounds in Conservatorship of O.B. (2020) 9
Cal.5th 989, 1010, fn. 7)
Mark’s argument begins with the fact that he was originally a 50
percent owner of the Center Street property. He then contends the quitclaim
deeds executed by the siblings were merely to facilitate a refinancing, noting
that the Center Street property was refinanced on the same day the
quitclaim deeds were recorded and that the deeds were given for no
consideration. Finally, he relies on the fact that Jean’s subsequent tax
returns reflected her ownership of only 25 percent of Center Street. We
conclude that Mark’s evidence did not compel a finding in his favor as a
matter of law.
At trial, Mark acknowledged that he intended for the
reconveyance of the Center Street property, but “probably forgot about it.” He
did not know why the Center Street property was not reconveyed to him
between 1993 and 2000. He did not address the issue as to the title until he
and Michael filed their petition in 2019. The trial court found that Mark’s
testimony concerning the circumstances of the signing of the quitclaim deeds
was not credible. It is not our role to revisit the court’s credibility findings.
(Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 786 [“‘[i]t is the trial court’s
role to assess the credibility of the various witnesses . . . . We have no power
to . . . consider the credibility of witnesses . . . .’”].) While Center Street was
refinanced on the same day the quitclaim deeds were recorded, there was no
compelling evidence that the quitclaim deeds merely transferred legal title to
facilitate that transaction, as opposed to full legal and beneficial title, as the
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law presumes. The primary evidence to support Mark’s version of those
events was his own testimony, which the court rejected.
Mark’s other evidence was Jean’s tax returns, which the trial
court also expressly considered and concluded they were insufficient to
satisfy his burden of clear and convincing evidence. Mark has not cited any
authority that tax returns are conclusively, or even presumptively, correct.
While we have not found any authority in the probate context, in the family
law context the court in In re Marriage of Hein (2020) 52 Cal.App.5th 519
conducted an extensive legal analysis and concluded that tax returns are not
presumptively correct, noting that they are subject to being manipulated. (Id.
at pp. 543–544.) Although there was no explicit finding of manipulation here,
the court expressed a similar concern that “during the relevant times,
[Michael and Mark] had the full trust of Jean, Debra, and Linda which
allowed Michael and Mark to do as they wished without regard to their
fiduciary duty to Jean and Jean’s interests.” And, indeed, there was at least
one example of Jean’s tax returns being manipulated: Michael’s false claim
that he had completed a section 1033 exchange on her behalf.
Ultimately, it was the trial court’s role to weigh the evidence,
including the tax returns, and it found that Mark failed to meet the heavy
burden of clear and convincing evidence. Mark has not cited any authority on
appeal that would permit us to conclude that the trial court was compelled to
make a contrary finding as a matter of law. Accordingly, we defer to the
court’s findings and affirm its denial of Mark’s quiet title action.
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III.
ATTORNEY FEES
Michael and Mark contend that if we reverse a substantial
portion of the judgment, which we have, then we should reverse the trial
court’s award of attorney fees as well. We agree.
Probate Code section 1002 provides, “either the superior court or
the court on appeal may, in its discretion, order costs to be paid by any party
to the proceedings, or out of the assets of the estate, as justice may require.”
“‘Where the expense of litigation is caused by the unsuccessful attempt of one
of the beneficiaries to obtain a greater share of the trust property, the
expense may properly be chargeable to that beneficiary’s share.’” (Estate of
Ivey (1994) 22 Cal.App.4th 873, 883.)7
Here, the trial court awarded Debra and Linda their attorney
fees from the assets of the trust generally, but awarded Michael and Mark’s
attorney fees out of their own shares of the trust. Although the court did not
explicitly recite the factual basis for its award of attorney fees, it was
presumably due to the relative success and lack of success of Debra and
Linda on the one hand, and Michael and Mark on the other. Because our
holding significantly alters that balance of success, we reverse the court’s
attorney fee awards.
7 The parties all assume that the reference to “costs” in Probate
Code section 1002 includes attorney fees. The statute does not specify
attorney fees. The parties did not provide any authority that section 1002
includes attorney fees. We express no opinion on the matter. The parties are
free to litigate this issue further on remand.
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IV.
REMAINING ISSUES
Michael’s and Mark’s briefs raise other issues, but we conclude
they are either moot in light of our holdings or forfeited due to the lack of
briefing.
Michael contends the trial court erred by directing the trustee to
establish an education fund for qualifying grandchildren. However, besides
stating that he was appealing from that order, he did not include any
argument under a separate heading, any factual discussion with references to
the record, nor any legal arguments relevant to the issue. Accordingly, it is
forfeited. (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 [“Failure to
provide proper headings forfeits issues that may be discussed in the brief but
are not clearly identified by a heading”]; Hearn v. Howard (2009) 177
Cal.App.4th 1193, 1207 [“When an appellant raises an issue ‘but fails to
support it with reasoned argument and citations to authority, we treat the
point as waived’”].)
Michael also appeals from the trial court’s order that he conduct
a formal accounting of trust assets, but for the same reason, we deem the
argument forfeited. It was mentioned in his brief as an appealed issue, but
there is no heading, no argument, and no factual discussion supporting the
issue.
Finally, both Michael and Mark dispute the trial court’s finding
that the doctrine of trustee de son tort applies to them. The doctrine of
trustee de son tort essentially creates a constructive trustee under certain
circumstances. “‘One who has assumed the relation and undertaken to act in
the capacity of a trustee and who has thereby come into the possession and
control of the money or property of another cannot be heard to deny the
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validity of the trust under which he has admittedly acted and the benefits of
which he has received and holds. [Citation.] . . . [A] person may become a
trustee by construction by intermeddling with and assuming the
management of property without authority, and . . . during the possession
and management thereof by such constructive trustees they are subject to the
same rules and remedies as other trustees, and cannot avoid their liability as
such by showing that they were not in fact trustees, nor can they set up the
statute of limitations.’” (King v. Johnston (2009) 178 Cal.App.4th 1488, 1505–
1506 [citing England v. Winslow (1925) 196 Cal. 260, 267].)
However, in their briefs, Michael and Mark only discuss the
trustee de son tort doctrine in connection with their contention that the trial
court relied on that doctrine to make an equitable exception to the statute of
limitations. Because we have resolved the statute of limitations issues
through our interpretation of the equalization provision and by reference to
the rule announced in Cook, we need not address whether the court
committed the error Mark and Michael claim, nor whether substantial
evidence supported the court’s finding that the trustee de son tort doctrine
applies to them.
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DISPOSITION
The trial court’s orders pertaining to the equalization of sales and
rental proceeds, which are orders 18, 19, 20, 21, 22, 23, 24, 25, 26, and 30 in
the final statement of decision and judgment, are reversed. The court’s orders
concerning attorney fees are reversed. In all other respects, the judgment is
affirmed. Mark and Michael shall recover their costs incurred on appeal.
SERVINO, J.
WE CONCUR:
MOTOIKE, P.J.
SCHWARM, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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