Filed 9/8/26 Winter v. Parker, Milliken, Clark, etc. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JEFFREY WINTER, as Trustee, B342960
etc., et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. 24STCP00403)
v.
PARKER, MILLIKEN, CLARK, B342961
O’HARA & SAMUELIAN, APC, (Los Angeles County
et al., Super. Ct. No. 24STCV03284)
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Barbara M. Scheper, Judge. Reversed and remanded
with directions.
Halpern May Ybarra Gelberg, Joseph J. Ybarra, Kevin H.
Scott and Yogini Patel for Defendant and Appellant Parker,
Milliken, Clark, O’Hara & Samuelian, a Professional
Corporation.
Greenberg Gross and Alan A. Greenberg for Defendant and
Appellant Buchalter, a Professional Corporation.
Joshua R. Furman Law, Joshua R. Furman; and Donald L.
Saltzman for Plaintiffs and Respondents.
__________________________
Jeffrey Winter and Franklin Henry Menlo (Menlo
Trustees), in their capacities as co-trustees of the Franklin Henry
Menlo Irrevocable Trust established March 1, 1983 (Franklin
Menlo Trust), filed an action for legal malpractice, fraudulent
concealment, and other claims (malpractice action) against two
law firms retained by the former trustee (Leslie Klein): Parker,
Milliken, Clark, O’Hara & Samuelian, a Professional Corporation
(Parker Milliken) and Buchalter, a Professional Corporation
(collectively, the Law Firms). In a related action, the Menlo
Trustees filed a verified petition pursuant to Civil Code
section 1714.10 (conspiracy petition) seeking leave to file a civil
conspiracy claim against the Law Firms. Both actions were
based on allegations that the Law Firms conspired with Klein,
who was the former trustee of the Franklin Menlo Trust and
27 Menlo family trusts, to misappropriate more than $20 million
from the trusts.
The Law Firms appeal from the trial court’s orders denying
their motions to compel arbitration of the conspiracy petition
(case No. B342960) and the malpractice action (case
No. B342961). They contend the court erred in finding the Menlo
Trustees, as successor trustees, were not bound by the mandatory
arbitration provision in Parker Milliken’s engagement agreement
because Klein signed the agreement in his personal capacity, and
not in his fiduciary capacity as trustee. The Law Firms also
contend the court abused its discretion in denying arbitration of
2
the claims against Buchalter pursuant to Code of Civil Procedure
section 1281.2, subdivision (c),1 after the court found those
claims, although covered by an enforceable arbitration
agreement, arose from the same transactions as the non-
arbitrable claims against Parker Milliken, and there was a
likelihood of conflicting rulings if the Buchalter claims were
compelled to arbitration.
We conclude Klein engaged Parker Milliken and Buchalter
in his fiduciary capacity as a trustee (potentially in addition to
his personal capacity), and therefore the arbitration agreements
are binding on the Menlo Trustees. We reverse both orders and
direct the trial court on remand to grant the motions to compel
arbitration.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Menlo Family Trusts and Probate Court Action2
Between 1983 and the early 2000’s, Sam and Vera Menlo
established at least 96 irrevocable trusts for the benefit of their
five children, 36 grandchildren, and other family members. Their
son Franklin is the sole beneficiary of the Franklin Menlo Trust,
an irrevocable trust established in 1983. The family trusts were
funded by cash, securities, and life insurance policies worth tens
of millions of dollars.
1 Further undesignated statutory references are to the Code
of Civil Procedure.
2 Our factual recitation is based on the allegations in the
conspiracy petition and its attachments.
3
Between 1996 and 2002, Klein, an estate planning attorney
and certified public accountant, served as the sole trustee of at
least two dozen Menlo family members’ trusts, including the
Franklin Menlo Trust. After Klein failed for over a decade to
provide accountings for the trusts, on September 12, 2012
Franklin filed a verified petition in the probate court seeking
Klein’s removal as trustee of the Franklin Menlo Trust and for an
accounting and surcharge. Twenty-three other Menlo family
members filed analogous petitions with respect to their trusts,
and the probate court ordered the 24 petitions consolidated with
the lead case captioned In re Franklin Henry Menlo Irrevocable
Trust Established March 1, 1983, Los Angeles County Super. Ct.
case No. BP136769 (probate court action).
B. The Law Firms’ Engagement Agreements
In 2012 Klein separately engaged Parker Milliken and
Buchalter to represent him in connection with the probate court
action.
1. The Parker Milliken agreement
Parker Milliken’s engagement agreement was set forth in a
letter dated October 5, 2012 addressed to “Leslie Klein, Esq.”
Klein signed and dated his acceptance of the agreement on
October 11 above the printed words, “Leslie Klein, Trustee.”
(Block capitalization omitted.)
The engagement agreement stated, “[W]e appreciate your
choice of Parker, Milliken to represent you in connection with the
contested proceedings concerning the Menlo trusts, of which you
are the trustee (the ‘Matter’). For the purposes of this letter, you
will be referred to as the ‘Client’ or ‘Leslie Klein.’” Under the
4
heading “Scope of Representation,” the letter stated the firm “will
be representing only you as the Client and will not be
representing any person related or unrelated to Client nor any
parent, subsidiary or other affiliated entity nor any shareholder,
partner, director, officer, employee or agent of Client. . . .”
(Underlining omitted.) A fee payment provision stated in part
that “[o]ur statements will be sent to you and it will be your
responsibility to allocate our fees among the various Menlo trusts
of which you are a trustee.”
The Parker Milliken agreement included an arbitration
provision stating in relevant part that “any . . . dispute between
or among you and us or any of our attorneys and agents,
including but not limited to claims of malpractice, errors or
omissions, breach of this agreement, or any other claim of any
kind regardless of the facts or the legal theories, shall be finally
settled by mandatory binding arbitration in Los Angeles,
California, conducted in accordance with California Code of Civil
Procedure §§ 1282 et seq., including, but not limited to,
section 1283.05, with each party to bear its own costs and
attorneys’ fees and disbursements.” The arbitration provision
included a mutual acknowledgment and waiver that Klein signed
above the printed words, “Leslie Klein, Client.”3
3 In 2022 Klein entered two additional engagement
agreements with Parker Milliken relating to trusts that were not
initially part of the probate court action. In the trial court and on
appeal, the parties have focused their arguments on the 2012
agreement, which we conclude requires arbitration of the Menlo
Trustees’ claims. We therefore do not address the 2022
agreements.
5
2. The Buchalter agreement
Buchalter’s operative engagement agreement is dated
September 20, 2016 and superseded an earlier engagement
agreement dated October 2, 2012. The agreement defined the
term “You” to mean “Leslie Klein” and stated, “You are hiring
[Buchalter] to represent You in your individual capacity and as
Trustee in connection with the Menlo Litigation,” which was
defined to mean “the 24 pending petitions” consolidated in the
probate court action. (Capitalization omitted.) Klein signed the
agreement under the printed words, “Leslie Klein, individually
and as Trustee.”
The Buchalter agreement included an arbitration provision
stating in part, “You agree that, if any dispute arises out of or
relating in any way to this Agreement, our relationship, or the
services performed (including but not limited to disputes
regarding attorneys’ fees or costs and claims of negligence, breach
of contract or fiduciary duty, fraud or any claim based upon a tort
or statute), such dispute shall be resolved by submission to
binding arbitration in Los Angeles County, California, before a
retired judge or justice with ADR Services, Inc. pursuant to [its]
rules in effect at the time of any such dispute.”
C. Klein’s Suspension and Removal as Trustee
In connection with the probate court action, between 2013
and 2018 the Law Firms were involved in preparing accountings
for at least three time periods for each of the subject trusts, as
well as supplemental and amended accounts and other reports
relating to the trusts’ administration. The Law Firms were
named on the captions of the documents filed in court, and their
attorneys signed the accounts and reports.
6
In September 2021 the probate court appointed retired
judge Glen M. Reiser as a referee to conduct three separate trials
concerning asserted discrepancies in three accounts prepared by
the Law Firms, as well as other contested issues in the probate
court action. Parker Milliken represented Klein at these trials,
which took place over 22 days between December 15, 2021 and
March 30, 2022.
On August 29, 2022 the referee issued an 84-page report
and recommendation, including statements of decision for each of
the trials. The referee found Klein embezzled tens of millions of
dollars from the Menlo family trusts over decades “through an
elaborate scheme to pay himself by co-mingling assets; cross-
borrowing among 24 [t]rusts; taking loans against trust assets
and cross-paying debts—filtered with stunning frequency
through Klein’s personal and business accounts. . . .” In
particular, “‘Klein embezzled what has been accurately calculated
to be $19,225,065 in [t]rust assets for which he has no response,’”
although Klein’s commingling of accounts was so pervasive that
it “‘render[ed] the scope and breadth of Klein’s misappropriations
incalculable and untraceable.’” Klein also refused to provide
accountings for the trusts “even after a decade of litigation,”
borrowed millions of dollars against trust assets, used the trusts
as overdraft protection for his personal credit cards, filtered
transactions through his own attorney-client trust account, and
“torpedoed $20,000,000 in valuable trust life insurance policies”
by failing to maintain them and instead diverting trust assets for
non-trust purposes. In the course of the probate court action,
“Klein submitted 72 incomplete and misleading accountings to
the Court intending to mask his many years and millions of
dollars of fiduciary misappropriation.” The referee recommended
7
that Klein be surcharged approximately $30 million for his
misconduct, including a principal surcharge of about $19 million,
plus $11 million in damages under Probate Code section 859,
based on bad faith concealment.
In September 2022 the probate court suspended Klein as
trustee of the subject trusts and other Menlo family trusts and
appointed the Menlo Trustees as interim co-trustees. In
May 2023 the court adopted the referee’s report and
recommendations and issued a final statement of decision. On
October 10, 2023 the court formally removed Klein as trustee and
appointed the Menlo Trustees as successor co-trustees.
D. The Menlo Trustees’ Malpractice Complaint and Conspiracy
Petition
On February 7, 2024 the Menlo Trustees, in their capacity
as co-trustees of the Franklin Menlo Trust, filed a civil action
against the Law Firms asserting causes of action for legal
malpractice, breach of fiduciary duty, negligence, and fraudulent
concealment. (Los Angeles County Super. Ct. case
No. 24STCV03284.) The allegations of the complaint pertained to
28 Menlo family members’ trusts, including those involved in the
24 petitions consolidated in the probate court action.
The complaint alleged “Buchalter was hired by and began
working for Klein in his capacity as the [t]rusts’ sole trustee
starting around March 2012 [and] Parker Milliken was hired by
and began working for Klein in his capacity as the [t]rusts’
trustee starting around October 2012.” Klein retained the Law
Firms “to handle matters relating to the trusts, including
preparation of an accounting” as his “misconduct began coming to
light.” In the course of their representation, the Law Firms
8
learned of Klein’s misappropriation and waste of trust funds;
they aided his schemes; and they helped him conceal his breaches
of fiduciary duty. Among other things, they were “involved in (or,
at the very least, aware of) efforts to mask the millions of dollars
Klein misappropriated from the [t]rusts by presenting
incomplete, misleading, or fabricated accountings.” They also
knew in advance that Klein planned to let valuable life insurance
policies lapse because of diversions of funds. Moreover, Klein
paid the firms’ fees and costs with trust funds, which were used
“to assist Klein in masking his thievery.” Even after Klein was
suspended and then removed as trustee, the law firms “continued
to represent Klein as the suspended trustee in state court actions
relating to the [t]rusts,” including making court appearances and
filings. The law firms later “dragged their feet in providing
[trust] records in an apparent [effort to] conceal their
involvement in Klein’s misdeeds.”
On the same day they filed the malpractice complaint, the
Menlo Trustees filed a verified petition in a separate action
pursuant to Civil Code section 1714.104 seeking leave to assert
claims against the Law Firms for conspiracy and aiding and
abetting Klein’s breaches of fiduciary duty as trustee in
connection with the probate court proceedings. (Los Angeles
4 Civil Code section 1714.10, subdivision (a), provides that
“[n]o cause of action against an attorney for a civil conspiracy
with his or her client arising from any attempt to contest or
compromise a claim or dispute, and which is based upon the
attorney’s representation of the client” may be included in a
complaint unless the court has determined “that the party
seeking to file the pleading has established that there is a
reasonable probability that the party will prevail in the action.”
9
County Super. Ct. case No. 24STCP00403.) The conspiracy
petition attached the malpractice complaint, a proposed
conspiracy complaint, the probate court referee’s report, and a
supporting affidavit attaching documents the Law Firms
prepared in connection with the accountings.
On August 7, 2024 the proceedings on the malpractice
complaint and conspiracy petition were ordered related and
assigned to Judge Barbara M. Scheper.
E. The Law Firms’ Motions To Compel Arbitration
On June 10, 2024, before the two actions were related, the
Law Firms filed a joint motion to compel arbitration of the
malpractice complaint and to stay the proceedings and a
substantially similar joint motion to compel arbitration of the
conspiracy petition and to stay proceedings (collectively, motions
to compel).
In their motions, the Law Firms argued the Menlo
Trustees’ claims should be arbitrated because Klein, in his
capacity as trustee of the subject trusts, entered into written
arbitration agreements in the Law Firms’ engagement
agreements; the arbitration agreements governed all issues in
dispute; and the Menlo Trustees filed the actions as successor
trustees for the purpose of asserting the trusts’ interests, and
thus they succeeded to Klein’s contractual duty to arbitrate.5 The
5 The Law Firms also argued the Menlo Trustees were
equitably estopped from refusing to arbitrate because their
claims arose from the attorney-client relationship between the
Law Firms and Klein and alleged Klein’s breaches in his capacity
as trustee in handling trust matters. Because we conclude Klein
entered into the engagement agreements in his capacity as
10
Law Firms attached to their motions the 2016 Buchalter
agreement and 2012 Parker Milliken agreement.
In their oppositions, the Menlo Trustees argued the
Buchalter and Parker Milliken agreements did not identify the
Franklin Menlo Trust, and thus Klein was personally bound by
the agreements under Probate Code section 18000,
subdivision (a).6 Further, the Parker Milliken agreement on its
face applied only to the firm’s personal representation of Klein,
and not to services the firm provided on behalf of the Franklin
Menlo Trust. The Menlo Trustees also argued the equitable
doctrine of unclean hands precluded the Law Firms from
enforcing their engagement agreements because the agreements
were intended to assist Klein in his illegal conduct. The Menlo
Trustees did not dispute that Klein signed the engagement
agreements, nor did they argue the agreements were
unconscionable or their claims fell outside the scope of the
arbitration provisions.
In their joint replies, the Law Firms argued with respect to
Probate Code section 18000, subdivision (a), that both the Parker
Milliken and Buchalter agreements included language making it
clear that the Law Firms’ representations applied to Klein’s role
in the subject trusts. The Parker Milliken agreement stated
trustee, we do not reach the Law Firms’ equitable estoppel
argument.
6 Probate Code section 18000, subdivision (a), states, “Unless
otherwise provided in the contract or in this chapter, a trustee is
not personally liable on a contract properly entered into in the
trustee’s fiduciary capacity in the course of administration of the
trust unless the trustee fails to reveal the trustee’s
representative capacity or identify the trust in the contract.”
11
Klein retained the firm “to represent [him] in connection with the
contested proceedings concerning the Menlo Trusts, of which [he
is] trustee,” an unequivocal reference to the probate court action
involving the Franklin Menlo Trust. The Buchalter agreement
likewise provided that the firm was representing Klein “in your
individual capacity and as Trustee in connection with the Menlo
Litigation,” which was defined as the 24 probate petitions
consolidated in the probate court action. In addition, the
signature blocks on both firms’ agreements identified Klein as
“Trustee.” Moreover, paragraph 25 of the malpractice complaint
alleged the Law Firms represented Klein “in his capacity as the
Trusts’ sole trustee.”
F. The Trial Court’s Ruling
After a two-day hearing, on November 22, 2024 the trial
court denied the motions to compel. In a six-page statement of
decision entered in both actions, the court found the Menlo
Trustees, as successor trustees to the Franklin Menlo Trust, were
bound as a matter of law by any arbitration agreements executed
by a predecessor trustee. Because Klein signed the Buchalter
agreement “in his individual capacity and in his capacity as a
trustee,” that agreement was binding on the Menlo Trustees.
The Buchalter agreement also sufficiently identified the Franklin
Menlo Trust through its reference to and definition of the “Menlo
litigation” to show representative capacity under Probate Code
section 18000, subdivision (a). Further, the Menlo Trustees were
“suing Buchalter for an alleged breach of fiduciary duty which is
covered by the terms of the Buchalter [a]greement.”
However, the trial court found that Klein signed the Parker
Milliken agreement in his personal capacity only, relying on the
12
language in the agreement stating Parker Milliken “‘will be
representing only you as the Client and will not be representing
any person related or unrelated to the Client nor any parent,
subsidiary or other affiliated entity.’” The court found “this
clause precludes any representation of Klein in his representative
capacity as trustee,” even though the agreement “does mention
the Menlo trust dispute and that [the] client is a trustee.”
Instead, the agreement “purport[ed] to represent Klein
personally ‘in connection with the contested proceedings
concerning the Menlo trusts, of which you are the trustee,’” and
thus, the agreement was not binding on the Menlo Trustees
under Probate Code section 18000, subdivision (a).
Having found “a valid arbitration agreement exists
between [the Menlo Trustees] and Buchalter, but not between
[the Menlo Trustees] and Parker Milliken,” the court exercised its
discretion under section 1281.2, subdivision (c), to refuse to
compel the claims against Buchalter to arbitration. The court
made findings that “[t]he cases against both parties arise out of
the same series of related transactions, namely alleged
participation in Klein’s schemes,” and “[i]f the [c]ourt were to
compel arbitration with respect to Buchalter, there would be risk
of conflicting rulings because both parties are heavily involved in
[the Menlo Trustees’] case.”
The Law Firms each timely appealed from the trial court’s
orders denying the motions to compel in both actions.
13
DISCUSSION
A. Law Governing Motions To Compel Arbitration and
Standard of Review
Section 1281.2 requires the trial court, with limited
exceptions, to order arbitration of a controversy “‘[o]n petition of a
party to an arbitration agreement alleging the existence of a
written agreement to arbitrate a controversy and that a party to
the agreement refuses to arbitrate such controversy . . . if it
determines that an agreement to arbitrate the controversy
exists.’” (Trinity v. Life Ins. Co. of North America (2022)
78 Cal.App.5th 1111, 1119-1120.) “‘As the language of this
section makes plain, the threshold question presented by every
petition to compel arbitration is whether an agreement to
arbitrate exists.’” (Mar v. Perkins (2024) 102 Cal.App.5th 201,
211; accord, Santana v. Studebaker Health Care Center, LLC
(2026) 120 Cal.App.5th 1, 11 (Santana) [“Because arbitration is a
contractual right, the threshold question in every motion or
petition to compel arbitration is whether an agreement to
arbitrate exists.”]; see Coinbase, Inc. v. Suski (2024) 602 U.S. 143,
145 [“Arbitration is a matter of contract and consent,
and . . . disputes are subject to arbitration if, and only if, the
parties actually agreed to arbitrate those disputes.”].)
“‘Generally speaking, one must be a party to an arbitration
agreement to be bound by it. “The strong public policy in favor of
arbitration does not extend to those who are not parties to an
arbitration agreement, and a party cannot be compelled to
arbitrate a dispute that he has not agreed to resolve by
arbitration.”’” (Monschke v. Timber Ridge Assisted Living, LLC
(2016) 244 Cal.App.4th 583, 586-587; accord, Ford Motor
14
Warranty Cases (2025) 17 Cal.5th 1122, 1128 (Ford Motor)
[“‘“‘[T]here is no policy compelling persons to accept arbitration of
controversies which they have not agreed to arbitrate.’”’”].)
“In California, ‘[g]eneral principles of contract law
determine whether the parties have entered a binding agreement
to arbitrate.’” (Pinnacle Museum Tower Assn. v. Pinnacle Market
Development (U.S.), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle);
accord, Ford Motor, supra, 17 Cal.5th at p. 1128; see Mondragon
v. Sunrun Inc. (2024) 101 Cal.App.5th 592, 602 [“‘“An arbitration
agreement is subject to the same rules of construction as any
other contract.”’”].) In interpreting an arbitration agreement,
“‘[t]he court should attempt to give effect to the parties’
intentions, in light of the usual and ordinary meaning of the
contractual language and the circumstances under which the
agreement was made.’” (Victoria v. Superior Court (1985)
40 Cal.3d 734, 744; see Santana, supra, 120 Cal.App.5th at p. 13
[“‘“The basic goal of contract interpretation is to give effect to the
parties’ mutual intent at the time of contracting.”’”].) “Generally,
courts must construe an apparent agreement between the parties
to make it ‘lawful, operative, definite, reasonable, and capable of
being carried into effect, if it can be done without violating the
intention of the parties.’” (Santana, at p. 13, quoting Civ. Code,
§ 1643.) ““‘A court must view the language in light of the
instrument as a whole and not use a ‘disjointed, single-
paragraph, strict construction approach.’”’” (Rice v. Downs (2016)
248 Cal.App.4th 175, 186; accord, Arzate v. ACE American Ins.
Co. (2025) 108 Cal.App.5th 1191, 1200.)7
7 The Law Firms argue we should construe any ambiguities
in the agreements in favor of arbitrability, citing Coast Plaza
15
The party seeking to compel arbitration bears the burden of
proving by a preponderance of the evidence an agreement to
arbitrate a dispute exists, and the party opposing arbitration
bears the burden of proving unconscionability or other defenses.
(Pinnacle, supra, 55 Cal.4th at p. 236; see Trinity v. Life Ins. Co.
of North America, supra, 78 Cal.App.5th at p. 1120 [“To carry
[its] burden of persuasion the moving party must first produce
‘prima facie evidence of a written agreement to arbitrate the
controversy.’”].) Where the evidence with respect to the existence
of an arbitration agreement is not in conflict, “‘we review the trial
court’s denial of arbitration de novo.’” (Ford Motor, supra,
17 Cal.5th at p. 1128; accord, Pinnacle, at p. 6; Mondragon v.
Sunrun Inc., supra, 101 Cal.App.5th at p. 602.)
Doctors Hospital v. Blue Cross of California (2000)
83 Cal.App.4th 677, 686 (“California has a strong public policy in
favor of arbitration and any doubts regarding the arbitrability of
a dispute are resolved in favor of arbitration”) and EFund Capital
Partners v. Pless (2007) 150 Cal.App.4th 1311, 1321 (“‘[t]his
strong public policy has resulted in the general rule that
arbitration clauses should be upheld “unless it can be said with
assurance that an arbitration clause is not susceptible to an
interpretation covering the asserted dispute”’”). However, this
rule does not apply to the determination of whether Klein
engaged the Law Firms in his fiduciary capacity as trustee
because “‘[t]here is no public policy favoring arbitration of
disputes that the parties have not agreed to arbitrate.’” (Lopez v.
Charles Schwab & Co., Inc. (2004) 118 Cal.App.4th 1224, 1229;
see Victoria v. Superior Court (1985) 40 Cal.3d 734, 739 [“‘policy
favoring arbitration cannot displace the necessity for a voluntary
agreement to arbitrate’”].)
16
B. The Trial Court Erred in Denying the Motions To Compel
Arbitration Because the Menlo Trustees Are Bound by the
Law Firms’ Engagement Agreements
The Law Firms contend the trial court erred in finding
Klein engaged Parker Milliken to represent him solely in his
personal capacity. They argue it is clear from the language of the
agreement and extrinsic evidence that Klein engaged the law
firm as then-trustee of the Menlo family trusts involved in the
probate court action. We recognize the Parker Milliken
agreement is not a paragon of clarity with respect to Klein’s
capacity in retaining the firm, especially as compared to the
Buchalter agreement that plainly stated Klein was hiring it “to
represent You in your individual capacity and as Trustee.”
Nonetheless, there is no reasonable construction of the Parker
Milliken agreement that supports the court’s finding that Klein
engaged Parker Milliken solely in a personal capacity. On the
contrary, it is clear from the face of the agreement that Klein
engaged Parker Milliken in his fiduciary capacity as trustee,
regardless of whether he also retained the firm to represent him
personally.
1. Governing law on rights and duties of trustees and
successor trustees
As the trial court recognized, “[a] successor trustee is bound
by a valid arbitration agreement executed by a predecessor.”
(Thomas v. Westlake (2012) 204 Cal.App.4th 605, 613, fn. 5; see
id. at pp. 609, 613 [in action for fraud and breach of fiduciary
duty against financial advisors, successor trustee was bound by
arbitration provisions in account agreements signed by his late
mother in her capacity as trustee of the family trust].) This rule
17
flows from the axiom that “[t]he powers of a trustee are not
personal to any particular trustee but, rather, are inherent in the
office of trustee. It has been the law in California for over a
century that a new trustee ‘succeed[s] to all the rights, duties,
and responsibilities of his predecessors.’” (Moeller v. Superior
Court (1997) 16 Cal.4th 1124, 1131 (Moeller); accord, Thomas, at
p. 613, fn. 5; see Borissoff v. Taylor & Faust (2004) 33 Cal.4th
523, 527, 530 [“[w]hile privity of contract may not exist, the
successor [fiduciary] has the same powers and duties as the
predecessor,” and therefore the successor fiduciary of a probate
estate had the power to bring a malpractice action against the
lawyers hired by the previous estate administrator to provide
legal services on behalf of the estate].)
The Menlo Trustees do not dispute that, having filed suit in
their capacity as successor trustees alleging claims for
malpractice and breach of fiduciary duty against the Law Firms
on behalf of the trusts, the Menlo Trustees are bound by the
engagement agreements to the extent Klein engaged the Law
Firms in his capacity as trustee. The central question, therefore,
is the capacity in which Klein engaged Parker Milliken. It is
helpful for this analysis to understand the contexts in which a
trustee would hire an attorney in the trustee’s fiduciary or
personal capacity (or both). The Supreme Court’s analysis in
Moeller, supra, 16 Cal.4th 1124 provides guidance on this
question.
In Moeller, the court considered whether a successor
trustee of a family trust, who objected to the former trustee’s
final accounting and petition for fees, could compel the former
trustee to produce attorney-client documents related to trust
administration during the former trustee’s tenure. (Moeller,
18
supra, 16 Cal.4th at pp. 1128-1129.) As the court framed the
underlying question, “Who is currently the holder of the attorney-
client privilege with regard to the legal advice [the former
trustee] procured on behalf of the . . . trust while [he] was
trustee?” (Id. at p. 1130.) The court concluded the successor
trustee assumed the attorney-client relationship and controlled
the privilege. (Id. at pp. 1129-1130.)
The Moeller court began its analysis by recognizing that
“[t]he Probate Code implicitly authorizes a trustee to become an
attorney’s client and to claim the attorney-client privilege.”
(Moeller, supra, 16 Cal.4th at p. 1129.) In particular, “[a] trustee
may hire an attorney ‘to advise or assist the trustee in the
performance of administrative duties.’ (§ 16247.) A trustee may
also ‘prosecute or defend actions, claims, or proceedings for the
protection of trust property and of the trustee in the performance
of the trustee’s duties.’ (§ 16249, subd. (a).) [And] [o]f course, a
trustee involved in litigation concerning the trust may hire a
lawyer—indeed, the trustee often would be well advised to do so.”
(Moeller, at pp. 1129-1130.) “Any trustee who exercises the
powers granted in [Probate Code] sections 16247 and 16249
‘consults a lawyer for the purpose of retaining the lawyer or
securing legal service or advice from him in his professional
capacity’ (Evid. Code, § 951), and the trustee does so on behalf of
the trust. Therefore, the trustee, qua trustee, becomes the
attorney’s client.” (Id. at p. 1130, italics added.) Because the
“trustee, qua trustee” is the client, and a successor trustee
succeeds to the rights and duties of a former trustee, the
attorney-client privilege passes to the successor trustee. (Id. at
pp. 1130-1131.)
19
The Moeller court recognized an important exception:
“[T]he successor trustee inherits the power to assert the privilege
only as to those confidential communications that occurred when
the predecessor, in its fiduciary capacity, sought the attorney’s
advice for guidance in administering the trust.” (Moeller, supra,
16 Cal.4th at p. 1134.) Thus, “[i]f a predecessor trustee seeks
legal advice in its personal capacity out of a genuine concern for
possible future charges of breach of fiduciary duty, the
predecessor may be able to avoid disclosing the advice to a
successor trustee by hiring a separate lawyer and paying for the
advice out of its personal funds.” (Ibid.) The court acknowledged
“the distinction between these two types of confidential trustee-
attorney communications—administrative, on the one hand, and
defensive, on the other—may not always be clear” (id. at p. 1135),
but “a trustee can mitigate or avoid the problem [of lack of clarity
as to the trustee’s capacity as the client] by retaining and paying
out of his or her own funds separate counsel for legal advice that
is personal in nature.” (Ibid.)
2. The Parker Milliken agreement on its face shows that
Klein engaged Parker Milliken in his fiduciary
capacity as trustee
The Law Firms point to three provisions in the Parker
Milliken agreement that demonstrate Klein engaged the firm in
his fiduciary capacity as trustee. We agree this is the only
reasonable interpretation of the three provisions and the
agreement as a whole.
First (and most significantly), Klein signed the agreement
above the printed signature: “Leslie Klein, Trustee.” (Block
capitalization omitted.) While it is true the signature did not say
20
“Leslie Klein, as Trustee,”8 the placement of Klein’s name
adjacent to his fiduciary title “Trustee” is most reasonably
interpreted to mean he signed the agreement in his trustee
capacity. Further, the use of Klein’s title as trustee underscores
that Klein did not sign the agreement solely in his personal
capacity. (See Falkowski v. Imation Corp. (2005) 132 Cal.App.4th
499, 518 [executive was not personally liable on contracts as
agent of company where he “signed his name above his printed
corporate title in executing the relevant documents, thereby
giving adequate indication of his status as corporate agent.”].)
Moreover, Parker Milliken drafted the agreement, including the
signature block, and it is not plausible that the firm would have
written “Leslie Klein, Trustee” if it intended to limit its
representation to Klein’s personal interest (to protect its
attorney-client privilege with Klein and avoid any conflicts).
Second, the Parker Milliken agreement stated the firm
would be representing Klein “in connection with the contested
proceedings concerning the Menlo trusts, of which you [Klein] are
trustee (the ‘Matter’).” Even assuming the phrase “of which you
are a trustee” did not indicate Klein’s capacity in entering the
agreement, the scope of the engagement—in connection with the
probate court action (the “contested proceedings”)—shows that
the firm necessarily represented Klein in his fiduciary capacity
8 In the Buchalter agreement, Klein’s printed signature was
“Leslie Klein, individually and as Trustee.” Comparing the
signatures illuminates how the Parker Milliken agreement was
woefully ambiguous with respect to Klein’s personal capacity,
which is explicit in the Buchalter agreement; it does not suggest
to us that the use of the preposition “as” next to “Trustee” is
dispositive.
21
because the proceedings asserted causes of action for an
accounting, in addition to seeking removal of Klein as trustee and
a surcharge. A demand for an accounting is a quintessential
claim against a trustee in his or her fiduciary capacity concerning
trust administration. (See Kasperbauer v. Fairfield (2009)
171 Cal.App.4th 229, 235 [“Preparing the accounting and
responding to the beneficiaries’ objections to that accounting are
aspects of trust administration.”]; accord, Fiduciary Trust
Internat. of California v. Klein (2017) 9 Cal.App.5th 1184, 1201-
1202 [“one of the trustee’s primary duties is to respond to
questions and objections by beneficiaries regarding a fiduciary’s
accountings”]; see also Moeller, supra, 16 Cal.4th at pp. 1129-
1130 [Prob. Code, § 16247 authorizes trustee to hire an attorney
“‘to advise or assist the trustee in the performance of
administrative duties’” and to prosecute or defend actions
relating to “‘the performance of the trustee’s duties’”].)
Although a petition to remove or surcharge a trustee may
expose a trustee to personal liability for negligence or
misconduct, these petitions are only partially personal. Such
petitions affect the interests of the trust as much (or in the case
of unmeritorious petitions, even more so) than the individual
serving as trustee, because they constitute a time- and resource-
consuming challenge to (and interference with) trust
administration. (Powell v. Tagami (2018) 26 Cal.App.5th 219,
227, 237 [“‘While defense against [the surcharge] allegations may
have benefited [the trustee] personally by eliminating the
possibility of individual liability, they also benefited the trust by
eliminating charges raising serious questions about whether she
had and could continue to administer the trust properly.”].)
22
As discussed, a trustee in a fiduciary capacity would be
“well advised” to hire a lawyer in litigation concerning the
trustee’s administration. (Moeller, supra, 16 Cal.4th at p. 1130.)
Further, we are not aware of any authority (nor have the Menlo
Trustees cited any) stating a petition filed in probate court
pursuant to Probate Code section 16420, subdivisions (3) and (5)
(to remove and surcharge a trustee), may name a trustee in his or
her personal capacity without naming the trustee in his or her
fiduciary capacity. Indeed, the record contains petitions naming
Klein in both capacities, with Parker Milliken appearing for
Klein. In addition, if the trustee prevails against a petition for
surcharge or removal, the trustee and the lawyers are entitled to
recover their fees and costs from the trust property. (Estate of
Gump (1991) 1 Cal.App.4th 582, 604 [“It is established that
attorney fees and litigation costs incurred in the trustee’s
successful defense of an action brought by the beneficiary are
recoverable.”].)
As discussed, a trustee may “seek[] legal advice in its
personal capacity out of a genuine concern for possible future
charges of breach of fiduciary duty,” but a trustee, consonant
with his or her fiduciary responsibilities, would also need to
retain lawyers to represent the trust’s interests against
adversarial claims. (Moeller, supra, 16 Cal.4th at pp. 1130, 1134-
1135; see Fiduciary Trust Internat. of California v. Klein, supra,
9 Cal.App.5th at p. 1202 [“the mere fact that a communication
relates, however broadly, to a petition for surcharge or removal
does not prove that the legal advice contained within the
communication was sought or obtained by the predecessor trustee
out of concern for personal liability as opposed to concern for the
general health of the trust”].)
23
Finally, the fee payment provision of the Parker Milliken
agreement, which states that invoices “will be sent to you and it
will be your responsibility to allocate our fees among the various
Menlo trusts of which you are a trustee,” is consistent only with
the firm’s engagement of Klein in his fiduciary capacity, not
Klein personally. As the Supreme Court emphasized in Moeller,
“‘[a] trustee cannot compel the trust to pay his attorney’s fees
unless the services so employed were incurred in the management
and preservation of the trust estate.’” (Moeller, supra, 16 Cal.4th
at p. 1135; accord, Estate of Vokal (1953) 121 Cal.App.2d 252,
260.) Conversely, because there is no provision making Klein
personally responsible for payment of Parker Milliken’s fees, if
the firm was representing him solely in his personal capacity, the
firm would have had no recourse to collect its fees if the probate
court found Klein acted improperly and/or could not charge the
trusts for his personal defense. Moreover, such a provision
charging the trusts for the firm’s representation of Klein in his
personal capacity would fly in the face of the Supreme Court’s
admonition that a trustee who wishes to hire a personal lawyer
would need to “pay[] for the advice out of its personal funds.”
(Moeller, at p. 1134.)
The trial court’s reading of the “scope of representation”
provision in the engagement agreement to mean Parker
Milliken’s representation of Klein was solely personal is not a
reasonable interpretation of the agreement. As discussed, this
provision stated the law firm would be representing “only you as
the client,” and it would not be representing “any person related
or unrelated to Client nor any parent, subsidiary or other
affiliated entity nor any shareholder, partner, director, officer,
employee or agent of Client.” The court found, without further
24
explanation, that this language “precludes any representation of
Klein in his representative capacity as trustee.”
The flaw in the court’s reading of this boilerplate scope-of-
representation provision is that the court assumed the word “you”
referred to Klein personally. As discussed, the agreement stated
“[f]or the purposes of this letter, you will be referred to as the
‘Client’ or ‘Leslie Klein,’” but it did not specify whether it was
referring to Klein in his fiduciary or personal capacity.
Accordingly, the fact that Parker Milliken in the scope-of-
representation provision clarified that the firm was not agreeing
to represent anyone other than Klein (such as Klein’s law firm, or
a trust accountant) does not resolve the question whether Klein
engaged Parker Milliken personally or in his fiduciary capacity
on behalf of the trusts’ interests.9
9 Because the agreement is reasonably susceptible to Parker
Millikin’s interpretation that Klein engaged the firm in his
trustee capacity (or trustee and personal capacity), and it is not
reasonably susceptible to the Menlo Trustees’ interpretation that
under the agreement Parker Millikin represented Klein solely in
his individual capacity, we do not consider the declarations of the
attorneys who drafted and negotiated the agreements offered as
extrinsic evidence of the parties’ intent in entering the
agreement. (Brown v. Goldstein (2019) 34 Cal.App.5th 418, 433.)
We also deny the motions for judicial notice filed by Parker
Milliken on November 14, 2025 and the Menlo Trustees on
January 5, 2026 because the offered documents regarding
representations made in the probate court action are not relevant
to our resolution of the appeal. (See Coyne v. City and County of
San Francisco (2017) 9 Cal.App.5th 1215, 1223, fn. 3 [denying
judicial notice as to documents that were not relevant to court’s
analysis]; Arce v. Kaiser Foundation Health Plan, Inc. (2010)
181 Cal.App.4th 471, 482 [same].)
25
3. The Menlo Trustees have not established an unclean
hands defense, and the trial court must compel
arbitration
Because the Parker Milliken and Buchalter agreements
apply to the Menlo Trustees as a matter of law, the Law Firms
met their burden on the motions to compel arbitration of proving
that an agreement to arbitrate the disputes exists.10 The burden
therefore shifted to the Menlo Trustees to prove by a
preponderance of the evidence a defense to enforcement.
(Pinnacle, supra, 55 Cal.4th at p. 236.)
The Menlo Trustees contend, as they did in the trial court,
that the Law Firms cannot enforce the agreements to arbitrate
because they have unclean hands, in that the engagement
agreements were intended to assist Klein in his illegal conduct
and cover it up. We are not persuaded.
10 The Menlo Trustees also argue in their respondents’ brief,
as they did in the trial court, that the Buchalter and Parker
Milliken agreements are binding only against Klein in his
personal capacity because the engagement agreements do not
identify the trust under Probate Code section 18000,
subdivision (a).) There is no colorable argument that the
Buchalter agreement, which referred to Klein’s representation
“‘in your individual capacity and as Trustee in connection with
the Menlo Litigation’” failed to reveal his representative capacity.
Further, we agree with the trial court that both the Buchalter
agreement (defining the Menlo litigation to mean “the 24 pending
petitions consolidated with the lead case captioned Frank[lin]
Henry Menlo Irrevocable Trust”) and the Parker Milliken
agreement (identifying the “contested proceedings concerning the
Menlo trusts, of which you are the trustee”) adequately identified
the trusts at issue under Probate Code section 18000,
subdivision (a).
26
“A proceeding to compel arbitration is in essence a suit in
equity to compel specific performance of a contract.” (Freeman v.
State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 479; accord,
Villareal v. LAD-T, LLC (2022) 84 Cal.App.5th 446, 457.)
“Accordingly, equitable principles come into play and the actions
of a party seeking to compel arbitration can be considered by the
trial court and [the appellate] court. Specifically, no one can take
advantage of his own wrong.” (Weisman v. Johnson (1982)
133 Cal.App.3d 289, 295.) “‘“Whether the defense [of unclean
hands] applies . . . depends on . . . the nature of the misconduct,
and the relationship of the misconduct to the claimed injuries.”’”
(Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014)
229 Cal.App.4th 635, 653; accord, Aguayo v. Amaro (2013)
213 Cal.App.4th 1102, 1110.) “Any unconscientious conduct
connected with the controversy before the court [is] sufficient to
warrant application of the unclean hands defense.” (Kendall-
Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th
970, 980.) “‘The misconduct must “‘“prejudicially affect . . . the
rights of the person against whom the relief is sought so that it
would be inequitable to grant such relief.”’”’” (Jade Fashion, at
p. 654; accord, Meridian Financial Services, Inc. v. Phan (2021)
67 Cal.App.5th 657, 685.)
The Menlo Trustees assert as evidence of unclean hands
the Law Firms’ “apparent awareness that Klein’s authority was
questionable at best,” noting that both engagement agreements
acknowledged the probate court action was adversarial. They
further argue that the purpose of the engagement agreements
was to facilitate and cover up Klein’s illicit conduct, citing the
probate referee’s 2022 findings that Klein committed egregious
misconduct and, as alleged in the petitions, that “the law firms
27
justified Klein’s conduct in the probate court by filing false and
misleading accountings that included their payments.”
In other words, the Menlo Trustees rely on the allegations
in their malpractice complaint and conspiracy petition as
evidence of unclean hands, which they argue should equitably
bar an arbitrator from adjudicating those claims. But the
conspiracy allegations in the complaint and petition do not
constitute evidence the Law Firms acted unethically or
improperly with respect to “the transaction at issue” (the
agreement). (Jade Fashion & Co., Inc. v. Harkham Industries,
Inc., supra, 229 Cal.App.4th at p. 653.) Moreover, as discussed,
petitions by a trust beneficiary to compel an accounting or for a
trustee’s removal and surcharge are characteristically
adversarial, and the trustee will “of course” engage lawyers to
assist in the proceedings. (See Moeller, supra, 16 Cal.4th at
pp. 1129-1131.) There is no evidence, or even any material
allegation, that Parker Milliken in 2012 and Buchalter in 2016,
in drafting and executing the engagement agreements, acted
improperly or were aware that Klein had committed egregious
misconduct, as the probate court referee found 10 years later.11
11 Because we hold the Law Firms can compel arbitration of
the malpractice complaint and conspiracy petition, we do not
reach whether the trial court abused its discretion under
section 1281.2, subdivision (c), in declining to compel arbitration
of the claims against Buchalter.
28
DISPOSITION
The orders denying the Law Firms’ motions to compel
arbitration of the malpractice action (24STCV03284) and the
conspiracy petition (24STCP00403) are reversed. The matters
are remanded to the trial court with directions to vacate the
orders denying the Law Firms’ motions to compel arbitration and
to enter new orders granting the motions. The Law Firms are to
recover their costs on appeal.
FEUER, J.
We concur:
MARTINEZ, P. J.
SEGAL, J.
29