Filed 3/2/22
CERTIFIED FOR PARTIAL PUBLICATION1
v.
CHRISTINE CHUI, Individually and as Personal Representative, etc., Defendant and Appellant;
MICHAEL CHUI, a Minor, et al., Appellants;
ESTHER SHOU MAY CHUI CHAO et al., Respondents.
1Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts A, B.1, B.2, B.3, B.4, B.5, B.7, B.8, C.2, C.3, C.4, C.5, D, E.2, and F of the Discussion. APPEAL from orders of the Superior Court of Los Angeles County, David J. Cowan, Judge. Affirmed. Bohm Wildish & Matsen and James G. Bohm for Defendant and Appellant Christine Chui. Ambrosi & Doerges, Mary E. Doerges; Karcher Harmes and Kathryn Karcher for Appellant Michael Chui. Law Offices of Michael S. Overing, Michael S. Overing and Edward C. Wilde for Appellant Jacqueline Chui. Willkie Farr & Gallagher, Alex M. Weingarten, Eric J. Bakewell and Sean P. Hanle for Plaintiff and Respondent Benjamin Chui. Glaser Weil Fink Howard Avchen & Shapiro, Miriam J. Golbert and James T. Grant for Plaintiff and Respondent Margaret Tak-Ying Chui Lee. Oldman, Cooley, Sallus, Birnberg, Coleman & Gold and Justin B. Gold for Respondent Esther Shou May Chui Chao. Hinojosa & Forer, Jeffrey Forer and Shannon H. Burns for Respondent Jackson Chen. McBride Law Group and Julia C. McBride for Respondents Helena Chang Chui and Ruth Chang.
In proceedings under the Probate Code concerning the administration of a trust, the co-trustees and a beneficiary of the trust filed petitions under Probate Code section 8502 alleging that Christine Chui misappropriated trust assets and committed elder abuse against the trustor. On the day set for trial on the petitions,
2Unless otherwise indicated, all undesignated statutory references are to the Probate Code.
2 the litigants settled and recited the terms before the court. The terms affecting Christine’s minor children—Jacqueline and Michael3—who are beneficiaries under the trust, were subject to the approval of their guardian ad litem, Jackson Chen, and the court. Chen, on behalf of the Minors, subsequently entered into an agreement with the co-trustees and certain trust beneficiaries, but not Christine (the first GAL agreement). The first GAL agreement recited Chen’s approval of the oral settlement agreement and set forth additional terms. Christine sought to cancel and repudiate the agreements through a variety of procedural methods. The court granted the co-trustees’ motion to enforce the oral settlement agreement under Code of Civil Procedure section 664.6, but denied Chen’s petition for approval of the first GAL agreement. Chen, the co-trustees, and certain trust beneficiaries—but not Christine—subsequently entered into a second agreement (the second GAL agreement). Over Christine’s objections, the court granted Chen’s petition to approve that agreement. The court also denied Christine’s petition to remove Chen as the Minors’ guardian ad litem in the trust litigation and granted Chen’s petition to be appointed the Minors’ guardian ad litem in related probate cases. Christine and the Minors appealed, challenging the orders (1) enforcing the oral settlement agreement; (2) granting Chen’s petition to approve the second GAL agreement; (3) appointing Chen as the Minors’ guardian ad litem in certain probate cases;
3 Some of the parties have the same surname. To avoid confusion and to enhance the opinion’s readability, we will refer to the parties by their first names. We mean no disrespect. We will also refer to Jacqueline and Michael collectively at times as the Minors.
3 and (4) denying Christine’s motion to remove Chen as the Minors’ guardian ad litem. For the reasons set forth below, we affirm the court’s orders.
4 We will refer to the Trust and the subtrusts collectively as the Trust unless a more specific reference to a subtrust is appropriate. 5 Consistent with the terms of the Trust and the parties’ understandings, our references to properties includes the Trust’s interests in partnerships and limited liability companies that hold real property.
4 to Robert or, if Robert is not then living, to Robert’s children— Benjamin, Jacqueline, and Michael—equally. After May’s death, King amended Trust A several times.6 Under an amendment made in June 2004, interests in properties the parties refer to as Three Lanterns and Sycamore are to be distributed upon King’s death to Robert or, if Robert is not then living, to Christine; but if Christine is not then living, these properties are distributed to Michael. Under an amendment made in January 2005, a certain residence in Monterey Park is to be given to Jacqueline.7 Under an amendment made in November 2005, property the parties refer to as Atlantic Towers is to be distributed upon King’s death to Robert or, if Robert is not then living, to Christine.8 In addition to the distributions described above, the Trust document provides for distributions of real properties, business interests, and money to Robert, Margaret, Esther, Benjamin,
6 As a result of the amendments to Trust A, Robert’s share of the Trust assets allegedly increased from 36.6 percent to 69.7 percent. Benjamin alleged that King made these amendments as a result of Christine’s and Robert’s “psychological, emotional, and financial elder abuse on an increasingly demented and incapacitated King.” 7 Certain bequests are made to the trustees of trusts established for the benefit of Esther, Benjamin, or Jacqueline. Our references to bequests to such individuals includes bequests to the trustee of such trusts unless the more specific reference is appropriate. 8 The Atlantic Towers property was sold in 2013. It appears from our record that proceeds of the sale have been held in a separate account of a limited partnership that remains a Trust asset. The parties’ references to Atlantic Towers appears to refer to the Trust’s interests in that limited partnership.
5 Jacqueline, and Michael, among others. The Trust document includes other bequests that are not relevant for our purposes. The Trust document further provides for the distribution of the Trust residue; that is, trust property for which there is no specific bequest. Under the residuary provisions, 30 percent of the residue goes to each of Robert, Margaret, and Esther, and 10 percent goes to Benjamin; if, however, Robert predeceases King, Robert’s 30 percent share of the residue is distributed in equal parts to each of Robert’s children—Benjamin, Jacqueline, and Michael. In February 2011, King, whose cognitive abilities had allegedly been in decline for some time, resigned as trustee of the Trust and, pursuant to the Trust document, Robert and Margaret became co-trustees. In January 2013, Robert became incapacitated and, in March 2013, the superior court appointed Benjamin (Robert’s son by his first wife, Helena) to act as co-trustee of the Trust together with Margaret. (We will sometimes refer to Benjamin and Margaret collectively as the co-trustees.) Robert died in June 2013. King died in June 2014.
B. Trust Litigation In October 2012 (prior to Robert’s and King’s deaths), Esther filed a petition in the Los Angeles Superior Court alleging that Robert and Margaret improperly delegated to Christine their fiduciary duties as trustees of the Trust. The petition was assigned case No. BP137413. Esther sought an accounting and an order removing Robert and Margaret as trustees. In March 2013, Esther requested the appointment of a guardian ad litem for the Minors in Los Angeles Superior Court case No. BP137413. The court, over Christine’s objection, granted
6 the request and appointed Chen as the Minors’ guardian ad litem. At that time, Jacqueline and Michael were ages 10 and 8, respectively. In February 2014 (after Robert’s death and the appointment of Benjamin as co-trustee of the Trust), Esther filed an amended petition in case No. BP137413, alleging that Christine converted trust assets for her benefit. On the same day, Esther filed another amended petition under section 850 in the same case alleging that Benjamin and Margaret breached their fiduciary duties as co-trustees of the Trust. In August 2015, Benjamin and Margaret filed a petition in case No. BP137413 for an order surcharging Robert’s estate based on allegations that Robert breached his fiduciary duties as trustee “by making improper and unauthorized payments and disbursements of [t]rust assets.” In July 2016, Benjamin filed a petition under section 850 in Los Angeles Superior Court case No. BP154245. Benjamin alleged, among other claims, that Robert and Christine committed elder financial abuse against King and, acting as trustee and/or trustee de son tort, breached their fiduciary duties and misappropriated trust assets—including money, jewelry, and antiques—for their own benefit. Benjamin sought compensatory, statutory, and punitive damages, an order requiring Christine to disgorge assets wrongfully taken from the Trust, and a determination that Christine be deemed to have predeceased King for purposes of section 259. In October 2016, Christine filed petitions in Los Angeles Superior Court case No. BP155345 to remove Benjamin and Margaret as trustees of the Trust based on alleged breaches of trust. Christine sought, among other relief, an order suspending and removing Benjamin and Margaret as trustees and surcharging them for losses to Trust A incurred as a result of their
7 mismanagement. Benjamin moved to dismiss the petition under the anti-SLAPP statute (Code Civ. Proc., § 425.16). The court denied the motion on February 20, 2018.9 In August 2017, Margaret filed a “joinder” to Benjamin’s petition in case No. BP154245. In March 2018, Benjamin and Margaret filed a first amended petition that alleged claims similar to those Benjamin alleged in the original petition and sought similar relief. Esther filed another amended petition in January 2017 under case No. BP155345. She alleged that King suffered from dementia since 2004 and was susceptible to undue influence since that time. Christine and Robert allegedly took advantage of King’s vulnerability to wrongfully transfer to themselves approximately $10 million of trust assets. Esther sought, among other relief, an order that Christine return the property taken from the Trust and pay double damages pursuant to section 859. She also sought an order determining that Christine predeceased King for purposes of section 259. In addition to the Trust litigation in case Nos. BP137413, BP154245, and BP155345 described above, at least five other probate court proceedings have been deemed related to these cases. Although the substance and status of these related cases are not entirely apparent from our record, they have been identified (and summarily described) as Los Angeles Superior Court case No. BP143884 (concerning Robert’s estate); case No. BP145642 (concerning Robert and Helena’s irrevocable life insurance trust
9Benjamin appealed that order to this court, which we assigned case No. B288425. On January 29, 2020, we ordered the appeal stayed “pending determination of the proceedings before the probate court.”
8 (ILIT)); case No. BP145759 (concerning the guardianship of the Minors); case No. BC544149 (concerning litigation regarding Robert’s estate); and case No. BP162717 (concerning the King Chui and Chi May Chui life insurance trust).10 In 2014, the court appointed Christine as guardian of the estates of Jacqueline and Michael in case No. BP145759 and guardian ad litem for the Minors in case No. BP145642 (concerning the ILIT litigation). It does not appear that, prior to March 3, 2020, any guardian ad litem had been formally appointed for the Minors other than Chen in case No. BP137413 and Christine in the ILIT litigation, case No. BP145759.11
C. The Settlement Agreement Trial in the Trust litigation was set to begin on May 14, 2018.12 That day, counsel for Christine, Benjamin, Margaret, and Esther announced a settlement (the settlement agreement) in court and orally set forth the terms on the record in accordance with Code of Civil Procedure section 664.6. Guardian ad litem Chen was not present and the Minors were not represented in the proceeding.
10The parties also refer to Los Angeles Superior Court case No. BP16STP04524, which is apparently concerned with Robert’s separate property trust, although it does not appear that a court has deemed that case related to the others. 11 In March 2020, the court expressed its view that the failure to appoint Chen in “several other cases” that had been deemed related was the result of the court’s “oversight” and an “administrative defect,” which it then “cur[ed]” by appointing Chen as guardian ad litem in several of the related cases. 12 It is not clear from our record which cases were the subject of the trial that was scheduled to begin on May 14, 2018.
9 Christine’s counsel recited the following settlement terms on the record: (1) Christine “waives all rights to Trust A, including but not limited to claims regarding Three Lanterns, Sycamore, and Atlantic Towers. Such interest goes to the residue.” (2) Benjamin’s interest in “Taylor, Derek, and Paularino are disclaimed to the Minor[s],” and the Minors and Christine “disclaim their beneficial interest in Domingo” to Benjamin. The property known as “Calle Cristina will be sold, and two-thirds of the net proceeds will go to Ben[jamin], and the remaining one-third will go to the minor children’s trusts.” “The parties consent to the sale of [property known as] Hellman for fair market value, and shall cooperate as needed.”13 (3) Christine will deliver to Benjamin’s lawyers certain jewelry and other items of personalty within one week. (4) Christine will pay $3 million to Benjamin’s counsel’s trust account within one week. (5) The property to be distributed to Jacqueline and Michael under the Trust “will be distributed to their respective irrevocable trusts that were established by King, Robert[,] and Christine.” (6) “Christine disclaims any rights as a beneficiary of King’s trusts. The minor children’s claims, if any, can only be brought by their guardian ad litem Jackson Chen, his designee, or his court-appointed successor, until such time as they reach the age of majority.” (7) Christine’s appeal in the ILIT case and Benjamin’s appeal from the order denying his anti-SLAPP motion will be dismissed with prejudice, each side bearing their own costs and attorney fees.
13The Hellman property was not the subject of a specific bequest in the Trust and was considered part of the Trust residue.
10 (8) Benjamin “disclaims any further interest or rights or standing in Robert’s trust, with the exception of the Domingo property.” “All litigation between the parties . . . will be dismissed, with each side to bear their own costs and attorney fees.” No one admits liability and all parties “agree to a waiver of Civil Code section 1542.” (9) “[A]ll provisions of this agreement affecting the Minors’ interests and rights are subject to approval by the guardian ad litem.” (10) “[T]he parties shall work together to cause the Trust to be amended to effectuate the settlement with the resulting tax treatment that is fair and equitable to all parties.” (11) “[A]ll objections to any accountings are dismissed with prejudice, and all parties waive rights to future accountings.” (12) The parties shall “prepare a long form agreement, with all disputes regarding the long form agreement to be resolved by” a specified judge “via a binding arbitration.” The court confirmed with counsel that the agreement would be enforceable under Code of Civil Procedure section 664.6. After Christine’s counsel recited the foregoing terms, counsel for Benjamin announced that “there are other terms that are not material to the agreement with Christine that have been reached as and among all the other parties.” He proposed to read these additional terms into the record after the court has questioned the parties about the agreement. The court then asked Christine, Benjamin, Margaret, and Esther if they heard and understood the terms of the agreement, if they had had enough time to speak to their lawyers about the terms, and if they agreed to the terms. Each answered the questions affirmatively. The court concluded that, “subject to, with the exception of Mr. Chen on behalf of the two minor children, everybody appears
11 to have agreed to these terms, and the court can, with that one exception, assuming they agree, find that there’s a binding settlement of all issues, and all petitions will be disposed of per the agreement.” Benjamin’s counsel then indicated he wanted to place the additional terms on the record. Christine’s counsel asked if they “need[ed] to stay.” The court suggested that they “stay, just in case,” but told counsel, “[Y]ou can leave if you want.” Christine’s counsel responded, “Let’s leave.” Christine and her counsel then left the courtroom. Benjamin’s counsel then recited the following additional terms: Esther will receive the $3 million that Christine agreed to deliver to Benjamin’s lawyers; Helena Chui (Robert’s first wife and Benjamin’s mother) and Ruth Chang (Helena’s mother) will exercise a right to purchase the Sycamore property “at book value”; Esther has a right of first refusal on any offer for the Three Lanterns property without commission; and Margaret will have the authority to assign family burial plots. Lastly, a time limit established in the Trust that bars Esther from full access to her trust property shall be waived. The court inquired of Esther, Margaret, Helena, and Ruth as to their understanding and acceptance of the terms and their opportunity to speak with counsel, and received affirmative responses from each. The court then found that “there’s another binding agreement between the parties enforceable under [Code of Civil Procedure section] 664.6.” Within one week after the settlement agreement was placed on the record, Christine delivered to Benjamin’s counsel $3 million and certain jewelry, in accordance with the agreement.
12 D. The First GAL Agreement On July 5, 2018, Christine filed a motion to set aside the settlement agreement, asserting that her consent to the settlement “was legally invalid because she was under the influence of codeine, as well as ill and sleep-deprived.” She further asserted that the settlement agreement is “unconscionable.” The court denied Christine’s motion without prejudice as procedurally improper.14 On July 23, 2018, Chen, pursuant to a request from the court, provided a report to the court in which he referred to a “long-form” “draft ‘Settlement Agreement and Mutual Release,’ ” which Benjamin’s counsel had circulated. Chen informed the court: “At the present time, with the long-form agreement as drafted, I do not believe that the proposed settlement is in the best interests of the Minors and I am unable to sign the agreement.” He made the following comments: (1) The $3 million Christine paid to Benjamin’s counsel’s trust account should be deposited in the Trust to be applied to estate taxes and administration expenses; (2) He could not agree to “broad releases, including a waiver of Civil Code [s]ection 1542”; (3) He has “substantial concerns” regarding the distribution of property into the Minors’ trusts, which “are not supervised by the [c]ourt” and would extend the time the distributions are held in trust “to the detriment of the Minors”; (4) He would not agree to the approval of trust accountings or to waive the Minors’ rights to future accountings; and (5) The provision giving the guardian ad litem the power to bring claims
14The court denied the motion to vacate the settlement because “there was no such thing as a motion to vacate an agreement. You either file a complaint to vacate an agreement . . . or perhaps you bring a petition in probate court parallel to a complaint to vacate an agreement.”
13 on behalf of the Minors should be limited to matters connected to proceedings in which a guardian ad litem is appointed. Chen concluded that he “will insist on certain changes to the long-form agreement before” he agrees to sign it. On August 10, 2018, Benjamin, Margaret, Esther, and Chen entered into the first GAL agreement, which recites that Chen “agrees to the terms of the Settlement Agreement subject to this Agreement.” The first GAL agreement included, among other provisions, an agreement that the Minors will each receive $500,000 out of the $3 million Christine had delivered to Benjamin’s counsel. The agreement further provides that the guardian ad litem’s waiver of rights under Civil Code section 1542 is limited to matters pertaining to the Trust and that, although Chen agrees to withdraw any objection to previously filed petitions for accountings, he “retains the right to request future accountings.” Christine is not named as a party to the first GAL agreement, and she did not sign it.
E. Motion to Enforce the Settlement Agreement On August 15, 2018, Benjamin and Margaret filed a motion to enforce the settlement agreement under Code of Civil Procedure section 664.6. The motion was supported in part by Chen’s declaration in which he states that he believes the first GAL agreement “did not change the material terms of the settlement agreed to by the other parties.” The settlement agreement, he stated, “is in the best interest of the [M]inors and the other beneficiaries of the . . . Trust.” In a supplemental declaration, he stated that he “never rejected the May 14, 2018 [s]ettlement,” and he had “agreed to the settlement on behalf of the [M]inors on August 10, 2018.”
14 Christine filed an opposition to the motion and argued, among other arguments, that Chen’s July 23, 2018 report “amounted to a rejection of the offer set forth in the [settlement] [a]greement,” and the first GAL agreement includes terms that differ from the settlement terms. On September 12, 2018, the court held a hearing on the motion and took the matter under submission. On September 17, the court issued a written ruling granting the motion. The court rejected Christine’s argument that the terms of the oral settlement agreement were changed by the first GAL agreement. The first GAL agreement, the court explained, “explicitly states Chen’s agreement to the terms of the settlement agreed to by the other parties on the record before the [c]ourt on May 14, 2018.” The court also rejected the argument that Chen’s July 23, 2018 report to the court constituted a rejection of the settlement agreement: “Chen never stated that he rejected the terms of the settlement”; he “stated merely that he would not sign the proposed long form agreement as drafted.” The court concluded by stating that “[t]he [settlement] agreement still remains subject to [c]ourt approval of the [M]inors’ compromise.” In its order, the court noted that although “Chen was appointed initially as [guardian ad litem] in just one case, thereafter the parties stipulated that the pending petitions in all these related cases were to be tried together. The [c]ourt understood that [Chen] was [guardian ad litem] for all of these cases—as did Chen.” In that order, the court refers to the following cases as “related”: BP137413, BP143884, BP145642, BP145759, BP154245, BP155345, BP162717, and BC544149. On September 27, 2018, Christine filed a motion for reconsideration of the order enforcing the settlement agreement.
15 She argued that she had been denied an evidentiary hearing and that the court erred in concluding that the agreement among other parties that the $3 million she had paid would be given to Esther was immaterial. She further argued that Chen’s July 23, 2018 report constituted a rejection of the settlement “offer.” Before that motion was heard, Christine filed a motion to vacate the order enforcing the agreement on the grounds: (1) Two pending appeals in related cases deprived the court of jurisdiction to make the order enforcing the settlement agreement; (2) Christine, in her capacity as guardian ad litem for the Minors in the ILIT case and as guardian of the Minors’ estates, did not consent to the settlement agreement; (3) There was no meeting of the minds because Christine was mistaken as to material terms of the settlement agreement; (4) The settlement agreement was the result of extrinsic fraud or mistake; (5) The settlement agreement is unconscionable and contrary to public policy; and (6) Christine’s mental condition at the time of the agreement was “impaired.” On December 14, 2018, the court denied the motion for reconsideration and the motion to vacate the order enforcing the settlement agreement. On December 17, 2018, Christine filed a petition in case No. BP154245 to set aside the settlement agreement, appoint an interim trustee to manage the Trust, and appoint herself as guardian ad litem for the Minors in place of Chen, among other relief. The court subsequently granted Benjamin’s anti-SLAPP motion and dismissed the petition.15
15Christine has appealed the order granting Benjamin’s anti-SLAPP motion to this court (case No. B301214). We stayed proceedings on appeal pending the outcome of the litigation regarding the settlement agreement.
16 In January 2019, the court entered its order enforcing the settlement agreement.16
F. Chen’s Petition for Approval of the First GAL Agreement On November 12, 2018, Chen filed a petition for an order approving the first GAL agreement. A trial on Chen’s petition took place in April and May 2019. After Chen rested his case, Christine made a motion for nonsuit, which the court treated as a motion for judgment under Code of Civil Procedure section 631.8. On July 18, 2019, the court granted Christine’s motion and denied Chen’s petition for approval of the first GAL agreement. Chen, the court stated, had not proven “that the agreement is in both or either of the [Minors’] best interests.” The court also issued an order to show cause (OSC) re removal of Benjamin and Margaret as co-trustees.
G. The Second GAL Agreement On July 29, 2019, Benjamin and Margaret moved for reconsideration of the court’s order granting Christine’s motion for judgment. On August 22, Chen, Benjamin, and Margaret filed motions to reopen the trial. During the hearing on these motions in October 2019, the parties agreed to participate in a mediation.
16 Christine filed a notice of appeal from this order on March 5, 2019, which we assigned case No. B296150. In June 2019, Benjamin filed a motion in this court to dismiss the appeal on the ground that the order was not an appealable order because the settlement agreement was subject to approval of the Minors’ compromise. On July 3, 2019, we granted Benjamin’s motion and dismissed the appeal “as premature.”
17 On December 5, 2019, Benjamin, Margaret, Chen, and Christine participated in a mediation. All participants other than Christine reached an agreement (the second GAL agreement). At a status conference held on December 16, 2019, the court was informed of the second GAL agreement and ordered that the motions to reopen the trial and the motion for reconsideration of the order granting Christine’s motion for judgment were withdrawn as moot. The court explained that Chen’s petition for approval of the first GAL agreement was “denied with prejudice as to that agreement” and without prejudice to a motion for approval of “some revised [GAL] agreement.” The second GAL agreement was memorialized in a writing dated January 16, 2020, and signed by, among others, Benjamin and Margaret (in their individual capacities and as trustees of the Trust), Esther, Helena (Robert’s first wife), and Chen as the Minors’ guardian ad litem. Christine did not sign the document. The second GAL agreement incorporates the terms of the settlement agreement and states that the parties “agree to and approve the terms of the Settlement Agreement that affect Jacqueline and Michael, and except as expressly provided herein, nothing in [the second GAL agreement] modifies or eliminates any term of the [settlement].” According to the second GAL agreement: Benjamin shall give to the Minors his interests in the Taylor, Derek, and Paularino properties and the Minors shall give to Benjamin their interests in the Domingo property; the Minors shall each receive $500,000 out of the $3 million Christine paid to Benjamin’s counsel under the settlement agreement and approximately $190,000 “from Insurance
18 Trust #1”;17 Helena and Ruth shall pay $740,000 to each of the Minors for the Minors’ interests in Sycamore; the Calle Cristina property will be sold and one-third of the net proceeds “shall collectively be distributed” to the Minors “equally”; the Hellman property shall be sold and 10 percent of the net proceeds “shall collectively be distributed” to the Minors “equally”; Benjamin, Margaret, and Esther shall pay any estate tax liability attributable to the interests the Minors receive from the Trust; the Minors shall receive “a credit for their share of the [e]xpenses of [a]dministration [as defined] coupled with a complete and full distribution of their share of the Trust” and, as a result, they shall “have no further interest in the Trust and/or in the future accountings of the Trust”; the trustees shall pay any property taxes attributable to the Minors’ property interests in the Trust until the properties are distributed to them; “ ‘all objections to any accountings are dismissed with prejudice, and all parties waive rights to future accountings’ ”; the parties release the Minors from any liability for legal and administrative expenses attributable to the interests distributed under the second GAL agreement; and the parties waive their rights under Civil Code section 1542, provided that Chen’s waiver is limited to matters pertaining to the administration of and litigation relating to the Trust; the parties waive their right to object to approval of the second GAL agreement and to appeal from an order approving the agreement.
17 The Trust document does not refer to an “Insurance Trust,” and it is not clear from our record to what the phrase “Insurance Trust #1” refers. Its nature and the amount due the Minors under this trust, however, does not appear to be in dispute.
19 H. The Repudiations On December 3, 2018, Christine filed a notice of repudiation of the settlement agreement and the first GAL agreement. Three days later, she filed an amended and supplemental notice of repudiation of the settlement agreement and the first GAL agreement. Christine purported to repudiate these agreements in her capacity as parent and guardian of the Minors, guardian ad litem of the Minors with respect to the ILIT case, “and as a petitioner, respondent, and beneficiary of the . . . Trust.” According to Christine, the terms other parties agreed to after she left the courtroom on May 14, 2018 “resulted in material prejudice to the Minors.” She also relied on a declaration by an accountant who opined that the settlement agreement resulted in a net loss to the Minors of $25,251,430. In addition, “she has reason to believe” the settlement agreement may have caused “as much as $100,000,000.00” in economic harm to the Minors. In February 2019, Jacqueline (then 15 years old) filed an unverified notice of her repudiation of the settlement agreement and the first GAL agreement. She states that she is repudiating the settlement agreement “on her own” “because it is not in her best interests,” it waives various rights and claims she holds, disclaims her interest in the Domingo property, “and in many ways leav[es] her in a worse position than if Christine . . . had lost at trial.” On December 26, 2019—after the parties to the second GAL agreement participated in the mediation that led to that agreement and before that agreement was memorialized in writing—Christine filed a notice of repudiation of the second GAL agreement on the ground, among others, that the agreement was not in the best interest of the Minors. After the written second GAL agreement was executed, Christine filed a supplemental repudiation of the agreement. In each document, she stated she was acting as the
20 parent and guardian ad litem for the Minors in the ILIT case, guardian of the Minors’ estates, trustee of Robert’s separate property trust, and the trustee of the Minors’ irrevocable trusts. According to Christine, the Minors “are far better off without” the second GAL agreement “by approximately $50 million” and, if the agreement is disapproved, the Minors “will reserve their rights and claims of $100 million against Esther,” Benjamin, and Margaret, as well as their “rights to accountings, and appeal.” On January 31, 2020, Jacqueline (then 17 years old) and Michael (then 15 years old) signed and filed declarations repudiating the second GAL agreement. The Minors stated that Chen “has never met or spoken with [them]” during the preceding eight years and has assisted others in litigating against them and their interest. According to the Minors, the agreement also: “waives [their] substantial rights and claims including 8-year past due and future trust accountings”; “waives [their] substantial rights, interests, [and] claims of over $100 million against [others]”; and “waives [their] constitutional rights to appeal.” The Minors further stated that Chen has a conflict of interest by representing both of them.18 On February 27, 2020, the co-trustees filed a response to Christine’s purported repudiations. Among other points, they asserted that Christine does not have standing to repudiate the agreements in any capacity because Chen is the only person who can act for the Minors with respect to the Trust litigation, Christine has an irreconcilable conflict of interest with the Minors, and
18The court ultimately struck these declarations because they were not verified. The declarations were resubmitted in March 2020 with the Minors’ verifications.
21 Christine waived any rights to represent the Minors when she agreed to the settlement agreement.
I. The March 3, 2020 Consolidated Rulings The day after the second GAL agreement was signed, Chen filed a petition for its approval and a petition to remove Christine as the Minors’ guardian ad litem in all related cases and to appoint Chen in her place. In response, Christine filed demurrers to each petition and a petition to remove Chen as guardian ad litem for the Minors.19 On March 3, 2020, the court heard oral argument from counsel for Christine, Benjamin, Margaret, Esther, and Chen regarding the pending petitions and demurrers. At the conclusion of the hearing, the court issued a “consolidated ruling,” in which the court made the following rulings, among others: (1) The court overruled Christine’s demurrer to Chen’s petition to remove Christine as guardian ad litem of the Minors and granted Chen’s petition, appointing him guardian ad litem of the Minors in Christine’s place in all related cases except the case concerned with
19 On the same day, Christine, in her individual capacity and in her capacity as a fiduciary of Jacqueline and Michael, filed a petition under section 850 alleging, among other claims, that Benjamin, Margaret, and Esther had misappropriated trust property and tortiously interfered with Christine’s and the Minors’ expected inheritance. Among other relief, Christine sought: the return of property “wrongfully taken”; punitive damages; an order disinheriting Esther, Margaret, and Benjamin; and the removal of Benjamin and Margaret as co-trustees of the Trust.
22 the guardianship of the estate of the Minors (case No. BP145759);20 (2) The court denied without prejudice Christine’s petition for removal of Chen as the Minors’ guardian ad litem; and (3) The court overruled Christine’s demurrer to Chen’s petition for approval of the second GAL agreement and granted the petition. The court also discharged its OSC regarding removal of Benjamin and Margaret as co-trustees. Initially, the court stated that the co-trustees and Christine lacked standing to challenge Chen’s petition for approval of the second GAL agreement. “Proceedings on a [guardian ad litem’s] [p]etition for [a]pproval,” the court explained, “are fundamentally between the [M]inors, the [guardian ad litem], and the [c]ourt—and nobody else.” The court also rejected the need for an evidentiary hearing because “proceedings on a [p]etition for [a]pproval are generally non-adversarial in nature, as the proceeding is purely between the [c]ourt and its officer, the [guardian ad litem], to determine whether a proposed agreement is a good deal for the [M]inors.” In evaluating the second GAL agreement, the court considered the Trust document and evidence of what the Minors would receive under the second GAL agreement. The court noted that the second GAL agreement provided “substantially better economic terms for the Minors than the [first] GAL agreement,” which the court had rejected eight months earlier. In addition to greater economic benefits, the second GAL agreement also “disentangles the Minors’ assets from Ben[jamin]’s assets, substantially mitigating the possibility of future disputes.”
20 The court subsequently corrected this order to the extent it appointed Chen as guardian ad litem in case No. BP145642, involving the ILIT.
23 Although the Minors were waiving their right to future accountings, the court determined that this waiver had no “negative effect” on the Minors because, as a result of the property exchanges between the Minors and Benjamin, and the co-trustees’ agreement to cover the Minors’ liabilities for estate taxes and trust expenses, the co-trustees “will no longer hold any of the Minors’ assets,” and “the Minors no longer had any financial interest in the Trust.” The court approved of the second GAL agreement’s handling of Three Lanterns, Sycamore, and Atlantic Towers. The Minors would receive a total of $1,480,000 for their share, as residuary beneficiaries, of the Trust’s interest in the Sycamore property—an amount “corresponding to the Minors’ 20 [percent] interest in the [T]rust residue.” Three Lanterns will be sold to pay estate taxes in accordance with the terms of the Trust document,21 and the Minors’ share of that property’s value and the Atlantic Towers sale proceeds—equal to approximately $1.75 million—will, in effect, be exchanged for a “waiver” of the Minors’ $3.2 million share of estate taxes, producing “a net improvement of $1.45 million” for the Minors. The court expressly declined to consider “hypothetical trial results—where the evidence is unknown” and rejected “[u]nnecessary speculation as to the outcome of a highly contested, lengthy and expensive trial,” which “would not clarify the merits of the [a]greement.” In overruling Christine’s demurrer to Chen’s petition to remove Christine as guardian ad litem and her demurrer to Chen’s
21 Pursuant to the 2008 amendment to the Trust, estate taxes attributable to the gifts made of Trust A property were to be paid from the residue of the Trust and from the Three Lanterns property. According to evidence submitted by the co-trustees, there were insufficient assets in the residue to pay all the taxes due. The sale of Three Lanterns was therefore necessary to pay the taxes.
24 petition for approval of the second GAL agreement, the court rejected Christine’s reliance on her and the Minors’ repudiations of the second GAL agreement. The repudiations filed by the Minors, the court explained, “are not legally operative documents, as they are unverified and not prepared by or with the Minors’ [guardian ad litem].” Because the Minors “have no legal authority to file repudiations without the representation of a guardian ad litem,” the repudiations are “ineffective and improper.” The court stated that although Christine, as the Minors’ parent, “would generally have a right to object or repudiate, she is precluded from doing so here because her objection is inconsistent with the Minors’ interest.” Moreover, “Christine has expressly waived her right to bring claims on the Minors’ behalf or object to the terms of the [second] GAL [a]greement” under the settlement agreement. The court struck Christine’s repudiations “as improper and irrelevant.” In granting Chen’s petition to remove Christine as guardian ad litem and appointing Chen in her place in certain cases, the court found that Christine “waived her right to represent the Minors as their guardian for purposes of the settlement agreement” and that she has a conflict of interest arising “from her persistent opposition to any possibility of settlement,” which precludes “her from acting on the Minors’ behalf in this litigation.” The court further explained that, although the court had previously deemed the other cases related to the case in which Chen had been appointed guardian ad litem and had indicated to Chen that he should seek appointment in the related cases, Chen had not done so “until now.” By extending his appointment of Chen as guardian ad litem to the other cases, the court stated that it was “remedying an administrative defect” and “curing its own oversight.”
25 In denying Christine’s petition to remove Chen as guardian ad litem, the court noted that Christine waived her right to seek Chen’s removal when she agreed that the Minors’ claims “ ‘can only be brought by their guardian ad litem[,] . . . Chen.’ ” Moreover, the court found that “there is no basis to remove Chen where he has successfully done his job by negotiating an approvable settlement for the Minors, leaving them far better off than they were under the [first] GAL [a]greement.” On March 23, 2020, the court entered an order incorporating the March 3 rulings. Christine filed a motion for reconsideration of the consolidated rulings on March 13, 2020, and a motion for new trial on March 27, 2020. On April 28, 2020, the court denied Christine’s motion for a new trial. The court rejected Christine’s reliance on the Minors’ repudiations of the second GAL agreement because Christine lacked the authority to prepare and file the repudiations on the Minors’ behalf without Chen. Chen, the court explained, “must be involved in any [r]epudiations by the Minors.” On June 24, 2020, the court granted Christine’s motion for reconsideration of the court’s March 3, 3020 rulings with respect to her removal as guardian ad litem in the ILIT case (case No. BP145759), and otherwise denied the motion. On the same date, the court entered an order: approving the second GAL agreement; appointing Chen guardian ad litem of the Minors in case Nos. BP145642, BP154245, BP162717, 16STPB04524, BC544149; denying without prejudice Christine’s petition to remove Chen as guardian ad litem; and discharging the OSC regarding removal of the co-trustees.
26 On July 23, 2020, Christine, Jacqueline, and Michael filed separate notices of appeal from the court’s orders issued on March 3, 2020, April 28, 2020, and June 24, 2020. Chen filed a motion in this court to dismiss the appeals filed by Jacqueline and Michael. We summarily denied that motion on March 22, 2021. Christine, Jacqueline, and Michael— each represented by separate counsel—thereafter filed separate appellant’s briefs. The co-trustees, Esther, and Chen filed respondent’s briefs.
- Background: The Pending Appeals The pending appeals are case Nos. B286548, B288425, and B301214. Case No. B286548 is an appeal from a judgment in the
22 Esther contends that we should not consider the appeals by Jacqueline and Michael because they were represented by a guardian ad litem, Chen. Esther argues that the Minors can speak through only “[o]ne [v]oice”—in this case, Chen’s—and there cannot be a “second voice” speaking for the Minors on appeal, even their own. As we explain below, even if we assume that the Minors may appeal, they have failed to establish prejudicial error. We do not, therefore, need to decide whether Chen’s trial court appointment as the Minors’ guardian ad litem precludes the Minors from challenging the court’s orders on appeal.
27 ILIT litigation (L.A. Superior Court case No. BP145642) (the ILIT appeal). In that case, the trial court determined that Benjamin is the sole remainder beneficiary under Robert’s life insurance trust “and is entitled to . . . 100 [percent] distribution of the assets in the [trust].” The court entered a judgment in favor of Helena (Robert’s first wife) and Benjamin (Robert and Helena’s child) and against Christine (Robert’s second wife), in her capacity as guardian of the estates of Jacqueline and Michael (Robert and Christine’s children). Christine filed her notice of appeal in November 2017. Under the settlement agreement reached in May 2018, Christine agreed to dismiss the ILIT appeal. On February 21, 2019, we granted Benjamin’s motion to stay proceedings in the ILIT appeal pending resolution of Christine’s challenges to the settlement agreement and the second GAL agreement. Case no. B288425 is an appeal by Benjamin from an order issued on February 20, 2018 (L.A. Superior Court case No. BP155345) denying his anti-SLAPP motion to dismiss Christine’s petition to remove Benjamin as a trustee of the Trust. Benjamin filed his notice of appeal on February 23, 2018. Under the settlement agreement, Benjamin agreed to dismiss the appeal. On January 29, 2020, we granted Benjamin’s motion to stay proceedings on appeal in case No. B288425 “pending determination of the proceedings before the probate court.” Case No. B301214 is an appeal by Christine of an order issued on March 29, 2019 (L.A. Superior Court case No. BP154245) granting Benjamin’s anti-SLAPP motion dismissing Christine’s petition to set aside the settlement agreement and for other relief. On January 31, 2020, we granted Benjamin’s motion to stay
28 proceedings on appeal in this case “pending determination of the proceedings before the probate court.”23
- Discussion Under section 1310, an appeal of a judgment or order in proceedings governed by the Probate Code generally “stays the operation and effect of the judgment or order.” (§ 1310, subd. (a).) The question is thus whether the statutory stay of the “operation and effect” of the judgment in the ILIT case and the anti-SLAPP orders precluded the court from ruling on the motion to enforce the settlement agreement and Chen’s petition to approve the second GAL agreement. The purpose of the automatic stay under section 1310, like the automatic stay imposed in civil actions generally, “ ‘is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’ ” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189 (Varian) [discussing Code of Civil Procedure section 916, subdivision (a)].) In considering the analogous Code of Civil Procedure section that generally imposes a stay of proceedings “in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby” (Code Civ. Proc., § 916, subd. (a)), our Supreme Court has explained that the “fact that [a] postjudgment or postorder proceeding may render the appeal moot is not, by itself,
23 We take judicial notice of the notices of appeal and our orders staying proceedings on appeal in case Nos. B286548, B288425, and B301214.
29 enough to establish that the proceeding . . . should be stayed.” (Varian, supra, 35 Cal.4th at p. 189.) “Rather, something more is needed. For example, the trial court proceeding must directly or indirectly seek to ‘enforce, vacate or modify [the] appealed judgment or order.’ [Citation.] Or the proceeding must substantially interfere with the appellate court’s ability to conduct the appeal.” (Id. at pp. 189−190, fn. omitted.) A stay of trial court proceedings may also be required when “the possible outcomes on appeal and the actual or possible results of the proceeding are irreconcilable.” (Id. at p. 190.) Here, the motion to enforce the settlement agreement and petition to approve the second GAL agreement had two possible outcomes with respect to the pending appeals: (1) the motion or petition (or both) would be denied, in which case the provisions in the settlement agreement requiring the dismissal of the ILIT and anti-SLAPP appeals would be ineffective, the ILIT judgment and anti-SLAPP orders would be unaffected, and the appeals would proceed as if there had been no settlement agreement; or (2) if the motion and petition were granted, the appeals would be dismissed pursuant to the settlement agreement. Under the first possible outcome, there would be no impact on the effect or operation of the ILIT judgment and the anti-SLAPP orders and no interference with our ability to conduct the appeals from such judgment and orders. Under the second possible outcome, although the dismissal of the appeals necessarily interferes with our ability to conduct those appeals, it is an interference that the law encourages. As our Supreme Court has explained, settlement and dismissal of cases on appeal are favored “because it will preclude the need for future expenditures of time and money by the parties and the judiciary. Requiring parties to continue to litigate a matter over which there is no longer a real dispute ‘is wasteful of the resources of the
30 judiciary.’ ” (Neary v. Regents of University of California (1992) 3 Cal.4th 273, 277.) We therefore reject the argument that the pending ILIT and anti-SLAPP appeals had the effect of staying the proceedings that are the subject of this appeal. Christine further argues that Chen was required to bring his petition for approval of the second GAL agreement in this court. She relies on Anderson v. Latimer (1985) 166 Cal.App.3d 667 (Anderson). In that case, a minor was injured in an auto accident and sued the drivers of the two cars involved. (Id. at p. 670.) A jury found in his favor and against each defendant, and judgment was entered thereon. The defendants appealed. While the appeal was pending, one of the defendants settled with the minor’s guardian ad litem. (Id. at p. 676.) The guardian ad litem filed a petition
that “the settlement agreement is voidable . . . at the election of the minor” (id. at p. 1339)—even when the guardian ad litem continues to seek the court’s approval of the agreement, is thus dictum. Because the statement in Pearson is unsupported by authority or sound policy, and contrary to our analysis of the interplay between Code of Civil Procedure section 372 and Family Code section 6710, we decline to adopt such dictum or extend Pearson’s holding to the facts in this case. 69 D. Christine’s Additional Arguments At pages 102 to 108 of her opening brief, Christine asserts a series of arguments that lack citations to the record and citations to pertinent legal authority, and are at times incoherent and conclusory. These include the following assertions: The trial court “failed its duty to carry out the Trustors’ [i]ntent and Christine’s purpose of relinquishing assets of $35 million, to oversee [the guardian ad litem] and [c]o-[t]rustees’ breach of fiduciary duty, and to protect the minors”; “The Trustors and Christine had expected that it should be the duty of the [c]ourt, [the guardian ad litem] and the [t]rustees’ [sic] to carry out the Trustors’ irrevocable and indisputable intent that these real properties relinquished by Christine should have gone to the [c]hildren, not Esther, Margaret, Benjamin, Benjamin’s mother and wife (who are not even the Trust beneficiaries)”; The minors “were deprived by their expected inheritances, namely over $35 million in real and unique real properties, including Sycamore, Three Lanterns, Atlantic Towers, Taylor, family heirloom jewelries, and antique [sic] in the amount, which carry a sentimental value from the Trustors to the Minors and had generated substantial annual income of over $1 million for over 50 years”; “Christine would not agree to give Esther a penny (let alone $3 million cash, family heirloom jewelry and antique [sic], and Three Lanterns and Atlantic Tower), since Esther had sued Robert into an early [sic] and was the major cause of Robert’s death”; The court “erroneously removed Christine from protecting her children when enforcing the settlement on June 24, 2020”; and “The [c]ourt erred in restricting Christine from advocating for her purpose [sic] of relinquishing $35 million, carrying out the Trustors’ intent and protecting her children, by enforcing the settlement with adding 25 material terms, which Christine has never consented to.” Because these points are 70 undeveloped or incoherent and lack pertinent citations to the record or legal authority, we decline to address them. E. Order Denying Christine’s Petition to Remove Chen as Guardian Ad Litem
- Chen’s Alleged Conflict of Interest Christine and Michael contend that the court erred in denying Christine’s petition to remove Chen as the Minors’ guardian ad litem because Chen’s representation of both allegedly created an unavoidable conflict of interest. The argument is based on the same misunderstanding of section 259 discussed in Discussion part B.6, ante. Christine and Michael rely on the provision of the Trust document that provides for the Three Lanterns and Sycamore properties to be given to Robert if Robert is living when the last trustor dies and, if Robert is not then living, to Christine and, if neither Robert nor Christine is then living, to Michael. Christine argues that due to this provision, Michael and Jacqueline had divergent views as to whether Christine, if the case had gone to trial, could have been deemed to have predeceased King for purposes of section 259. Under Christine’s view of section 259, if she is deemed to have predeceased King, Michael would receive the Trust’s entire interests in Three Lanterns and Sycamore, and Jacqueline would receive no interest in these properties. But if Christine’s view of section 259 is incorrect, Three Lanterns and Sycamore would be distributed as part of the Trust residue of which Michael and Jacqueline are 10 percent beneficiaries. Christine therefore contends that Michael’s interests are aligned with her view of section 259, while Jacqueline’s interests are aligned with the opposing view. Chen, Christine concludes, was thus conflicted by the opposing interests of his wards. 71 Christine’s view of section 259, as discussed above, is based on an untenable construction of the statute. According to Christine, if she is deemed to have predeceased King under section 259, she has also predeceased King for purposes of the Trust bequest that Michael shall receive Three Lanterns and Sycamore if she predeceases King. The scope of the determination that one has “predeceased a decedent” under section 259, however, is expressly limited “to the extent provided in subdivision (c)” of that statute. Subdivision (c) extends no further than to prevent a person found liable under subdivision (a) or convicted of a specified crime under subdivision (b) from receiving any of the property, damages, and costs awarded to the decedent’s estate in an action described in subdivisions (a) or (b). That is, it limits what the abuser can receive; it does not expand the rights of others or create a rule for interpreting provisions of a trust document. A determination that Christine has predeceased King for purposes of section 259, therefore, does not mean that Christine has predeceased King for purposes of the bequest of Three Lanterns and Sycamore. In this light, Christine’s and Michael’s argument that Chen had a conflict of interest amounts to an argument that Chen had a duty to assert an untenable position on behalf of Michael. He did not. There was thus no conflict of interest and, therefore, no error in denying Christine’s motion to remove Chen as guardian ad litem.
- Chen’s Alleged Misconduct Michael further contends that Chen should have been removed because he made false statements regarding the co-trustees’ legal fees in this litigation. Michael relies on alleged statements and actions for which he provides no citation to the record. He also relies on Chen’s involvement in certain post-appeal orders, which Michael contends violate the terms of the settlement 72 agreement and the second GAL agreement. These allegations are also made without citation to the record and, in any case, are not encompassed within the scope of Michael’s notice of appeal. Michael further points to Christine’s experts’ declarations to the effect that the second GAL agreement deprived the Minors of more than $6 million in income from the Sycamore and Three Lanterns properties. Even if these statements are credited, they are expressly based on the assumptions that the settlement agreement is not enforceable and that Michael “stood to inherit Christine Chui’s interests in Sycamore.” These assumptions, however, are unsupported by the record. For all these reasons, we reject these contentions. F. The Court’s Discharge of OSC Regarding Removal of Co-trustees On July 18, 2019, when the court granted Christine’s motion for judgment as to the first GAL agreement, the court further ordered that the co-trustees be suspended as trustees and issued “an OSC why they should not be removed.” The court did not, however, set a date for a hearing on the OSC. The parties (other than Christine) thereafter entered into the second GAL agreement and Chen petitioned for its approval. Replacement trustees for Benjamin and Margaret were never appointed and the OSC does not appear to have been addressed again until the court issued its consolidated rulings on March 3, 2020. At that time, the court discharged the OSC because the settlement agreement had “been approved and [the] litigation [was] concluded.” The court thus found “it unnecessary to proceed on the OSC.” Christine and Michael argue that the court erred in discharging the OSC. Because we have affirmed the court’s ruling enforcing the settlement agreement and its approval of the second GAL agreement, which effectively terminate Christine’s and the 73 Minors’ interests in the Trust, Christine and Michael do not have standing to seek removal of the co-trustees. Accordingly, we reject this argument on that basis.