Filed 10/6/26 Westphal v. Kassity CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
AMBER WESTPHAL, B346170
Plaintiff and Appellant, (Los Angeles County Super.
Ct. No. 24STPB04685)
v.
JENNIFER KASSITY,
Defendant and Respondent.
APPEAL from orders of the Superior Court of Los Angeles
County, Gus T. May, Judge. Dismissed.
Amber Westphal, in pro. per., for Plaintiff and Appellant.
Cohen Law, Robert A. Cohen, and Amy M. Cohen for
Defendant and Respondent.
______________________
In 2013, Jacqueline Blankenship1 and her husband created
a living trust. At the same time, Jacqueline appointed Jennifer
Kassity, her niece, as her attorney-in-fact through a durable
power of attorney. Jacqueline passed away in 2015. Nine years
later, in 2024, Amber Westphal—the daughter of Jacqueline’s
husband—filed a petition under Probate Code section 4541,
subdivision (c),2 to compel an accounting of Jennifer’s actions as
Jacqueline’s attorney-in-fact over the three-month period before
Jacqueline died. The probate court denied Amber’s petition,
finding she did not have standing to bring the petition as an
“interested person,” and later denied her motion for
reconsideration. Amber challenges both rulings. We dismiss the
appeal because neither order is appealable.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Trust, Jacqueline’s Power of Attorney, and Amber’s
Other Probate Court Actions3
Jacqueline and Michael Blankenship married in 1999.
Jacqueline had no children, and Michael had four, including
Amber, Kimberly, and Michael Shane.
In October 2013, Jacqueline and Michael created a
revocable living trust, naming themselves as trustees. Upon the
second spouse’s death, Michael’s share was to be distributed
1 Because we refer to multiple people sharing the same last
name, we refer to everyone by their first name.
2 Undesignated statutory references are to the Probate Code.
3 The following facts are largely drawn from pleadings filed
in separate probate court actions initiated by Amber that were
consolidated with this case.
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equally to his children and Jacqueline’s share was to be
distributed equally to her three nieces, including Jennifer. Along
with the trust, Jacqueline and Michael executed a spousal
property agreement that characterized all their currently held
property as community property.
The parties appear to agree that, also in October 2013,
Jacqueline and Michael each executed a durable power of
attorney. In his, Michael appointed Jacqueline as his attorney-
in-fact effective immediately, with Kimberly named as the
successor attorney-in-fact if Jacqueline “dies, resigns, is unable to
act because of incapacity, or is unwilling to act.” Jacqueline’s
power of attorney is not in the record. Amber represented to the
probate court that she did not have a copy of it. Jennifer
acknowledged that Jacqueline appointed her as Jacqueline’s
attorney-in-fact, effective upon Jacqueline’s incapacity.
On October 30, 2015, Jacqueline and Michael amended the
trust to name Kimberly and Michael Shane as successor
cotrustees if either Jacqueline or Michael became unable or
unwilling to continue to act as a trustee. On the same date,
according to Amber, Jennifer began acting as Jacqueline’s
attorney-in-fact. Jacqueline passed away in December 2015.
In June 2016, Amber filed a petition to invalidate the trust,
and in September 2017, she filed a petition seeking appointment
as conservator over Michael. In her trust contest, Amber alleged
Michael had suffered from Alzheimer’s disease since at least 2010
and thus did not have legal capacity to execute the trust, spousal
property agreement, or power of attorney in 2013 and the trust
amendment in 2015. Amber also alleged these documents were
products of Jacqueline’s undue influence over Michael, which
further constituted a breach of Jacqueline’s fiduciary duty to
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Michael as his spouse. With her trust contest, Amber sought an
order compelling Kimberly and Michael Shane to provide an
accounting of their actions as cotrustees, citing concern that
certain assets had been “lost” through improper transfers from
Michael’s accounts to Jacqueline’s after the creation of the trust.
Amber voluntarily dismissed her petitions in 2018.
Michael passed away in September 2020.
In February 2021, Amber filed a new petition to invalidate
the trust and for other relief, including orders compelling
accountings from Kimberly and Michael Shane for their actions
as cotrustees and Kimberly for her actions as Michael’s attorney-
in-fact. Amber again raised lack of capacity, undue influence,
and breach of fiduciary duty as grounds to invalidate the trust.
In her petition, Amber alleged that Jacqueline and Michael
executed the trust amendment on October 30, 2015, after
Jacqueline, who had been diagnosed with cancer three years
earlier, was told in June 2015 that she had only six months to
live. According to Amber, upon the trust’s amendment, Kimberly
and Michael Shane immediately became cotrustees of the trust
and Jennifer immediately began acting as Jacqueline’s attorney-
in-fact. Amber also alleged that Kimberly acted as Michael’s
attorney-in-fact “from October 30, 2015 through Michael[’s] death
in 2020.”
In April 2021, Kimberly and Michael Shane provided a
“final accounting and notice of disbursement” for the trust to
Amber and the other trust beneficiaries. In an amended trust
contest petition, filed in August 2024, Amber contended this
“informal accounting” was deficient because it did not cover the
entire period in which Kimberly and Michael Shane served as
cotrustees or list all trust-related assets and transactions. Amber
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requested an order compelling Kimberly and Michael Shane to
file with the court a “full report and accounting of the Trust, and
produce all bank records, statements, checks, receipts, tax
returns, and other supporting documentation, from October 1,
2015 to the present.”
In April 2024, Amber initiated a separate action based on a
petition to compel Kimberly to submit an accounting for her
actions as Michael’s attorney-in-fact. At a hearing in February
2025, Kimberly agreed to prepare an accounting for the period in
which she served as Michael’s attorney-in-fact as well as an
accounting for the trust.
B. The Underlying Action for an Accounting from Jennifer for
Her Actions as Jacqueline’s Attorney-in-fact
In April 2024, Amber filed a petition under section 4541,
subdivision (c), for an order compelling Jennifer to submit an
accounting of all actions taken as Jacqueline’s attorney-in-fact in
the period from October 1 to December 31, 2015. Amber asserted
she had standing to bring the petition as an “interested person”
under section 4540, subdivision (k). She contended “[t]he actions
of [Jennifer], acting as the attorney-in-fact, had a direct effect on
Petitioner as a Beneficiary of the Trust and as the principal’s
stepdaughter.”
Amber asserted an accounting was necessary for the
protection of both Jacqueline’s and Michael’s estates based on her
belief that Jennifer “diverted both community property funds of
[Jacqueline and Michael] and other funds otherwise necessary for
the care of [Jacqueline] to matters unrelated to her care and
wrongfully utilized property belonging to Michael.” Amber also
alleged that when Jennifer was acting as Jacqueline’s attorney-
in-fact, she “was acting on behalf of both [Jacqueline] and
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Michael” based on Jacqueline “ha[ving] Power of Attorney over
Michael … until her death.” According to Amber, Jennifer took
over Jacqueline’s responsibilities as Michael’s attorney-in-fact,
which in turn gave her control over “the entire Blankenship
Estate.”4
Jennifer objected to the petition, arguing Amber lacked
standing to proceed under Probate Code section 4540 and the
court should dismiss the petition under section 4543 because
Amber had not demonstrated an accounting would benefit
Jacqueline or her estate. Jennifer also argued Amber’s petition
was time-barred under the four-year limitations period in Code of
Civil Procedure section 343. Jennifer asserted Amber was using
her petition as a “fishing expedition” to find information for her
trust contest.
In December 2024, the probate court held a hearing on
Amber’s petition under section 4541, subdivision (c), and took the
matter under submission. In January 2025, the court denied the
petition on the ground that Amber lacked standing as an
“interested person” under section 4540, subdivision (k), and
section 48, subdivision (b). The court concluded that, “as the
step-daughter of the principal, who has not been appointed to
represent Jacqueline’s estate, [Amber] has not shown that she
has standing to protect the interests of Jacqueline or her estate.”
The court added that, even if Amber had standing, it would
dismiss her petition under section 4543 as not necessary to
4 We note this allegation appears to conflict with Amber’s
allegation in her related trust contest that Kimberly took over as
Michael’s attorney-in-fact at the same time Jennifer began acting
as Jacqueline’s attorney-in-fact.
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protect Jacqueline or her estate. The court did not address
Jennifer’s statute of limitations argument.
Later that month, Amber moved for reconsideration. The
court determined Amber had not presented any new or different
facts and denied her motion.
Amber appealed from the orders denying her petition under
section 4541, subdivision (c), and her motion for reconsideration.
DISCUSSION
A. Power of Attorney Petitions and Accountings
The Power of Attorney Law appears in Division 4.5 of the
Probate Code. (§ 4000 et seq.) A power of attorney is a written
instrument executed by a “principal” that grants authority to an
“attorney-in-fact” to act on behalf of the principal. (§§ 4014, 4022,
4026.) Among his or her duties, “[t]he attorney-in-fact shall keep
records of all transactions entered into by the attorney-in-fact on
behalf of the principal.” (§ 4236, subd. (a).) The attorney-in-fact
also has a duty to make an account of such transactions in
limited circumstances, including when ordered by the court.
(§ 4236, subd. (b).)
Section 4541 provides that a petition may be filed for
various enumerated purposes relating to an attorney-in-fact’s
duties, including to “[c]ompel[] the attorney-in-fact to submit the
attorney-in-fact’s accounts or report the attorney-in-fact’s acts as
attorney-in-fact to the principal, the spouse of the principal, the
conservator of the person or estate of the principal, or to any
other person required by the court in its discretion.” (§ 4541,
subd. (c).) The probate court may dismiss a section 4541 petition
“if it appears that the proceeding is not reasonably necessary for
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the protection of the interests of the principal or the principal’s
estate.” (§ 4543.)
Section 4540 lists categories of people who have standing to
file a petition under section 4541, including (among others)
principals, their spouses, relatives, or conservators, and trustees
or personal representatives of principals’ estates. Pertinent here,
section 4540, subdivision (k), bestows standing on “[a]ny other
interested person or friend of the principal.”
The Probate Code defines “interested person” in section 48.
Section 48, subdivision (a), provides: “Subject to subdivision (b),
‘interested person’ includes any of the following: [¶] (1) An heir,
devisee, child, spouse, creditor, beneficiary, and any other person
having a property right in or claim against a trust estate or the
estate of a decedent which may be affected by the proceeding. [¶]
(2) Any person having priority for appointment as personal
representative. [¶] (3) A fiduciary representing an interested
person.” On the other hand, section 48, subdivision (b), provides:
“The meaning of ‘interested person’ as it relates to particular
persons may vary from time to time and shall be determined
according to the particular purposes of, and matter involved in,
any proceeding.” Standing under section 48 is a “ ‘a fluid concept
dependent on the nature of the proceeding before the trial court
and the parties’ relationship to the proceeding, as well as to the
trust (or estate).’ ” (Hamlin v. Jendayi (2024) 105 Cal.App.5th
1064, 1074; accord, Arman v. Bank of America (1999)
74 Cal.App.4th 697, 701-703.) “The probate court has flexibility
in determining whether to permit a party to participate as an
interested party,” and “ ‘a party may qualify as an interested
person entitled to participate for purposes of one proceeding but
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not for another.’ ” (Estate of Sobol (2014) 225 Cal.App.4th 771,
782; accord, Estate of Prindle (2009) 173 Cal.App.4th 119, 126.)
The “interested party” requirement is designed to
“prevent[] persons with no interest from delaying the settlement
of estate affairs.” (Estate of Maniscalco (1992) 9 Cal.App.4th 520,
523.) It also “provide[s] the probate court with flexibility to
control its proceedings to both further the best interests of the
estate and to protect the rights of interested persons to those
proceedings.” (Id. at p. 524.)
B. The Orders Denying Amber’s Petition and Her Motion for
Reconsideration Are Not Appealable
“A reviewing court has jurisdiction over a direct appeal only
when there is (1) an appealable order or (2) an appealable
judgment.” (Griset v. Fair Political Practices Com. (2001)
25 Cal.4th 688, 696; accord, Sheehy v. Chicago Title Ins. Co.
(2025) 108 Cal.App.5th 178, 181.) “The right to appeal in
California is ‘entirely statutory and subject to complete
legislative control.’ ” (Meinhardt v. City of Sunnyvale (2024)
16 Cal.5th 643, 651-652.) Code of Civil Procedure section 904.1
provides a list of appealable orders and judgments. “A reviewing
court must raise the issue [of appealability] on its own initiative
whenever a doubt exists as to whether the trial court has entered
a final judgment or other order or judgment made appealable by
... section 904.1.” (Jennings v. Marralle (1994) 8 Cal.4th 121,
126.) An appeal of an order that is not appealable must be
dismissed. (In re Marriage of Deal (2022) 80 Cal.App.5th 71, 77-
78.)
An appeal may be taken from any order made appealable
by the Probate Code. (Code Civ. Proc., § 904.1, subd. (a)(10);
Godoy v. Linzner (2024) 106 Cal.App.5th 765, 773.) Probate Code
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sections 1300 through 1304 list appealable probate court orders,
and these provisions are “ ‘exclusive.’ ” (Estate of Stoddart (2004)
115 Cal.App.4th 1118, 1125-1126 [“ ‘There is no right to appeal
from any orders in probate except those specified in the Probate
Code.’ ”]; accord, Estate of Schechtman(1955) 45 Cal.2d 50, 54
[“appeals in probate matters are limited to those expressly
provided by statute”].) Appeals in probate matters are limited in
order to prevent unreasonable delay in the distribution and
closing of estates. (Estate of Stoddart, at p. 1126; Varney v.
Superior Court (1992) 10 Cal.App.4th 1092, 1098.)
Amber first appeals from the order denying her petition
under section 4541, subdivision (c), to compel an accounting of
Jennifer’s actions as Jacqueline’s attorney-in-fact. However, the
order is expressly excluded as an appealable order under the
Probate Code.
Section 1302 governs the specific grounds for appeal in
power of attorney proceedings. The statute states in full: “With
respect to a power of attorney governed by the Power of Attorney
Law (Division 4.5 (commencing with Section 4000)), an appeal
may be taken from any of the following: [¶] (a) Any final order
under Section 4541, except an order pursuant to subdivision (c) of
Section 4541. [¶] (b) An order dismissing the petition or denying a
motion to dismiss under Section 4543.” (Italics added.) Amber
brought her petition under section 4541, subdivision (c), and the
probate court denied her request for relief under that statute.
The court’s order denying her petition was thus necessarily “an
order pursuant to section 4541, subdivision (c),” which is not
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appealable under the plain language of section 1302, subdivision
(a).5 We must therefore dismiss this part of Amber’s appeal.
Amber also appeals from the court’s order denying her
motion for reconsideration. But “ ‘[a]n order denying a motion for
reconsideration is not among the orders made appealable by the
Probate Code,’ ” and “to allow an appeal from an order denying a
motion for reconsideration would be contrary to the Probate
Code’s purpose to foster the expeditious resolution of estate
matters.” (Estate of Stoddart, supra, 115 Cal.App.4th at p. 1126;
see §§ 1300-1304.) As a result, we must also dismiss Amber’s
challenge to the order denying her motion for reconsideration.
Amber contends that even if the challenged orders are not
appealable, we should exercise our discretion to treat her appeal
as a petition for a writ of mandate. “ ‘An appellate court has
discretion to treat a purported appeal from a nonappealable order
as a petition for writ of mandate, but that power should be
exercised only in unusual circumstances.’ ” (Williams v. Impax
Laboratories, Inc. (2019) 41 Cal.App.5th 1060, 1071-1072; accord,
Estate of Weber (1991) 229 Cal.App.3d 22, 25 [a request to treat
any nonappealable probate court order as a writ petition “should
only be granted under extraordinary circumstances, ‘ “compelling
enough to indicate the propriety of a petition for writ … in the
first instance” ’ ”].) Amber asserts immediate writ review is
necessary “to ensure the preservation of the estate assets and the
5 While section 1302, subdivision (b), allows for an appeal
from an order dismissing the action under section 4543, the
probate court did not dismiss the action under this section and
instead merely noted it would have done so if it had first found
Amber had standing to bring her petition under section 4541
(which it did not).
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protection of the beneficiaries’ interests.” She argues that
without such review she will face irreparable harm from the
“alleged misappropriation of trust assets” because “the trail of
these community property assets may be lost forever.” Based on
this showing, we are not persuaded there exist such unusual,
extraordinary, or compelling circumstances to warrant treating
this appeal as a writ petition. Thus, we decline to exercise our
discretion to do so. (See Benton v. Benton (2019) 39 Cal.App.5th
212, 220 [“ ‘The interests of clients, counsel, and the courts are
best served by maintaining, to the extent possible, bright-line
rules which distinguish between appealable and nonappealable
orders.’ ”].)
DISPOSITION
Amber’s appeal from the order denying her petition to
compel an accounting under section 4541, subdivision (c), and the
order denying her motion for reconsideration is dismissed.
Jennifer is entitled to recover her costs on appeal.
STONE, J.
We concur:
SEGAL, Acting P. J.
FEUER, J.
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