Filed 6/15/16 Freuler v. Freuler CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


KARIN J. FREULER, as Cotrustee, etc.,                                H041000
                                                                    (Santa Clara County
         Plaintiff and Appellant,                                    Super. Ct. No. 1-13-PR172886)

         v.

KATHLEEN M. FREULER, as Cotrustee,
etc.,

         Defendant and Respondent.


                                              I. INTRODUCTION
         The parents of plaintiff Karin J. Freuler and defendant Kathleen M. Freuler1
executed a revocable trust in which the parents were initially cotrustees. After the father
died and the mother resigned as trustee, Kathleen became the sole trustee pursuant to the
terms of the trust. Kathleen later purportedly appointed Karin as cotrustee, but Kathleen
eventually revoked the appointment.
         Karin filed a petition seeking a determination that she was cotrustee of the trust,
and that the trust did not give Kathleen the power to unilaterally remove her. Karin also
sought a determination that Kathleen had breached various duties as trustee and sought
removal of Kathleen as trustee. After briefing and hearing argument from the parties, the



         1
         Since the Freuler family members have the same surname, we will refer to them
by their first names for purposes of clarity and not out of disrespect.
probate court determined that it was appropriate to bifurcate the issue of the trust’s
application to the purported appointment of Karin as cotrustee and the revocation of that
appointment. The court also determined that extrinsic evidence was not necessary to the
resolution of the issue. Ultimately the court concluded that Kathleen’s appointment of
Karin as cotrustee was invalid and void because the trust provided for the appointment of
a successor trustee but not a cotrustee.
       On appeal from the order determining that her appointment as cotrustee was
invalid, Karin contends that her appointment was valid because the trust instrument
provides for the appointment of “successor co-trustees.” She also argues that the probate
court erred by failing to hold an evidentiary hearing to consider extrinsic evidence
regarding this construction of the trust instrument. Karin further contends that the
briefing procedure utilized by the court was improper because the court did not comply
with the requirements for a summary judgment motion, the court’s ruling was based on a
ground that was not raised in Kathleen’s initial brief, and the court ruled on an issue that
was broader than the issue that it had ordered the parties to brief.
       For reasons that we will explain, we will affirm the order.
                II. FACTUAL AND PROCEDURAL BACKGROUND
       A. The Trust
       Raymond G. Freuler and Jeanne D. Freuler, a married couple, had two daughters,
plaintiff Karin and defendant Kathleen, and a son, Raymond G. Freuler, Jr.
(Raymond Jr.). Parents Raymond and Jeanne created the “1998 Freuler Family Trust.”
The trust instrument provided that Raymond and Jeanne were cotrustees.
       Raymond died in October 2001. Jeanne became the sole trustee upon Raymond’s
death pursuant to the trust instrument.
       The trust instrument provides that after the first spouse dies, the trust will be
divided into “separate Trusts,” specifically the “Surviving Spouse’s Trust,” the
“Deceased Spouse’s Trust,” and the “Marital Trust.” The Surviving Spouse’s Trust

                                              2
includes the surviving spouse’s separate property and share of community property that is
part of the trust estate. The Deceased Spouse’s Trust includes assets “which have the
highest value that can be allocated to such a trust without producing any federal estate tax
without using the marital deduction.” The Marital Trust contains any other assets of the
trust estate that have not been allocated to the other two trusts. The trust instrument
generally provides for quarterly distributions to the surviving spouse from each of the
three separate trusts. The trust instrument also generally provides that the surviving
spouse may amend or revoke the Surviving Spouse’s Trust but not the Deceased
Spouse’s Trust.
       After the death of the surviving spouse, and to the extent assets remain in the
Surviving Spouse’s Trust and the Marital Trust, those assets will become part of the
Deceased Spouse’s Trust. Kathleen, Karin, and Raymond Jr. are the beneficiaries of the
Deceased Spouse’s Trust. Raymond Jr. died in 2010 or 2011.
       B. Change of Trustee
            1. Resignation of Jeanne and succession of daughter Kathleen
                as trustee pursuant to section 2.1 of the trust instrument
       On September 13, 2012, Jeanne executed documents stating that she was resigning
as the sole trustee of the 1998 Freuler Family Trust, the Surviving Spouse’s Trust, the
Marital Trust, and the Deceased Spouse’s Trust. The trust instrument states the following
regarding trustees:
       “Section 2.1 Named Trustees [¶] We [Raymond and Jeanne] shall initially act as
Co-Trustees. If either of us is unable or unwilling to act as Trustee, whether by reason of
death, mental or physical incapacity . . . , then the other shall act as sole Trustee. If
neither of us can or desires to act as Trustee, then Kathleen M. Freuler shall act as
Trustee, followed if necessary by Karin J. Freuler and then Raymond G. Freuler, Jr.”
       Accordingly, following Jeanne’s resignation, daughter Kathleen became the
trustee.

                                               3
           2. Kathleen’s purported designation of sister Karin as cotrustee
                     pursuant to section 2.2 of the trust instrument
       The trust instrument allows the designation of a trustee as follows:
       “Section 2.2 Designation by named Trustee [¶] Notwithstanding Section 2.1, a
person named in that Section who is then acting as Trustee (including either [Raymond or
Jeane] or both of us) may designate a successor Trustee to act when he becomes unable
or unwilling to act as Trustee. The persons designated may be a successor Trustee named
above or any other natural person or entity, such as a bank or trust company. If one of
the persons named above makes such a designation, he or a successor to him named
above may later revoke that designation and either resume his duties as Trustee or
designate some other person or entity to so act. All such designations or revocations shall
be made by written instrument and shall be effective when a copy of that instrument is
delivered to the beneficiaries of the Trust for which the new Trustee is designated.”
       In October 2012, in an attempt to make Karin a cotrustee, Kathleen and Karin
executed a document entitled “Designation of Trustees,” which their mother Jeanne
signed about a month later. The document states: “I, Kathleen M. Freuler, being the
currently acting trustee of the 1998 Freuler Family Trust created by Raymond G. Freuler
and Jeanne D. Freuler by Declaration of Trust dated February 25, 1998, having the power
to do so pursuant to Part 2, Section 2.2 hereby make the following designation: [¶] From
and after the date of this Designation, Karin J. Freuler and I shall act as trustees of the
1998 Freuler Family Trust and each of its subtrusts, that is, the 1998 Freuler Family
Trust–Surviving Spouse’s Trust, the 1998 Freuler Family Trust–Deceased Spouse’s Trust
and the 1998 Freuler Family Trust–Marital Trust. Either of us acting alone or both of us
acting together may do any act or exercise any power that the trustee may do under the
Declaration of Trust or law.”
       A few months later, a petition by Kathleen, Karin, and their mother Jeanne
regarding the Marital Trust was granted by Orange County Superior Court. The court’s

                                               4
order apparently resulted in a portion of the assets of the Marital Trust being distributed
to Kathleen and Karin.
                  3. Revocation of designation of Karin as cotrustee
       The record reflects that Kathleen and Karin were unable to work together as
cotrustees. On July 11, 2013, Kathleen executed a document entitled “Revocation of Co-
Trustee and Appointment of Successor Trustee.” The document states that Kathleen
“appointed” Karin as cotrustee “pursuant to the power granted [Kathleen] in Section 2.2
of the Trust,” and that pursuant to section 2.2 Kathleen “has the right to revoke her
designation of [Karin] as Co-Trustee of the Trust and appoint another person or entity to
act as Co-Trustee or successor Trustee.” The document further states that Kathleen
“hereby revokes the designation of [Karin] as Co-Trustee of the Trust and appoints
First American Trust, FSB as Co-Trustee of the Trust to act with [Kathleen]. [¶]
Furthermore, [Kathleen] hereby appoints First American Trust, FSB as the sole successor
Trustee of the Trust upon the death, incapacity or resignation of [Kathleen].” (Some
capitalization omitted.)
       C. Karin’s Petition Regarding the Trust and Kathleen’s Written Objection
       On July 12, 2013, Karin filed a verified petition seeking a determination that she
was cotrustee of the trust, and that the trust did not give Kathleen the power to
unilaterally remove her. Karin also sought a determination that Kathleen had breached
various duties as trustee and sought removal of Kathleen as trustee.
       On November 5, 2013, Kathleen filed a verified written objection to Karin’s
petition. Kathleen characterized Karin as a “subsequent Trustee appointment” under
section 2.2 of the trust and contended that she (Kathleen) had the power to revoke Karin’s
appointment pursuant to section 2.2. Kathleen also denied that she had engaged in any
misconduct with respect to the trust.
       On November 6, 2013, Jeanne filed a declaration in support of Kathleen’s
objection to Karin’s petition. Jeanne stated that “[u]nder the terms of the Trust,” she and

                                              5
her husband Raymond nominated their daughter Kathleen as successor trustee. Jeanne
further stated in her declaration: “Only in the event that Kathleen was unable to serve as
trustee would our daughter Karin . . . serve as trustee.” Jeanne explained that Kathleen
approached her (Jeanne) about Karin “helping . . . to serve as co-trustee,” and Jeanne
“reluctantly agreed.” Thereafter, “tension” developed between the two sisters, and
Jeanne “support[ed] reinstating [Kathleen] as sole trustee.”
       D. Briefing Regarding Validity of Cotrustee Revocation
       In a written status conference statement, Kathleen proposed that the court set a
hearing date with a briefing schedule for the “purely legal issue” of the validity of the
revocation of Karen’s appointment as cotrustee. At the status conference, Karin opposed
Kathleen’s request. Karin contended that there were factual issues including regarding
“what the trust means.” Karin contended that extrinsic evidence was admissible and that
an evidentiary hearing was needed.
       The probate court ultimately set a briefing schedule for a hearing on whether the
matter could be resolved without extrinsic evidence. The court stated: “I’m inclined
to . . . have the parties brief the threshold issue which is, does the validity of revocation in
fact present a purely legal issue that can be resolved without extrinsic evidence? And
I’ll give you a hearing date which will just be for argument on the briefs that you’ve
submitted on those issues and then depending how that comes out, we’ll either have a
more fully blown evidentiary hearing with extrinsic evidence or it’s going to be resolved
as a purely legal issue.” The parties agreed that Kathleen would file an opening brief,
Karin would file opposition, and Kathleen would file a reply brief. The court ordered the
briefs to be filed in accordance with the regular time frames set forth for motions. The
court indicated that it would hear “argument on the threshold issue” on February 6, 2014.
                                1. Kathleen’s opening brief
       In her opening brief filed in the probate court on January 14, 2014, Kathleen relied
on the following sentence in section 2.2 of the trust instrument as providing the authority

                                               6
for her to revoke the cotrustee appointment of Karin: “If one of the persons named above
makes such a designation, he or a successor to him named above may later revoke that
designation and either resume his duties as Trustee or designate some other person or
entity to so act.” Kathleen argued that the provision must be construed so as to give
effect to the settlors’ intentions, that the provision was clear and not susceptible to more
than one meaning, and that the court could construe the provision as a matter of law
without extrinsic evidence. Kathleen contended that “[w]hether Karin was a ‘successor
Trustee’ or a ‘co-Trustee’ is irrelevant.”
                               2. Karin’s responding brief
       Karin filed a written response on January 24, 2014, contending that under the
terms of the document designating her as cotrustee and executed by all parties, and
pursuant to the Probate Code, she was a cotrustee with equal powers. She argued that
section 2.2 did not give Kathleen the unilateral power to remove her as cotrustee. Rather,
section 2.2 pertained to the designation of a successor trustee where the acting trustee is
unwilling or unable to act, and the ability of the former acting trustee to later resume the
role when the person is willing and able to act. Karin contended that the trust was
actually silent on the issue of whether she could be unilaterally removed as cotrustee by
Kathleen under the circumstances of the case. Thus, evidence was needed in order to
properly construe the trust, and an evidentiary hearing was required.
       Karin further emphasized that the question pending before the court was “whether
the Court may bifurcate the case and set a further pleading and hearing schedule, without
evidence, to adjudicate Kathleen’s single material contention that the language of the
Trust supports her actions.” Karin contended that bifurcation was not warranted under
Code of Civil Procedure section 598. She further argued that an evidentiary hearing was
necessary, but that if the court were to determine otherwise, she “should nonetheless be
entitled to brief the issue and have it heard in a subsequent hearing.”



                                              7
                                 3. Kathleen’s reply brief
       In a written reply filed January 30, 2014, Kathleen contended that the court had
invited briefing on two issues: (1) whether extrinsic evidence was needed to construe
section 2.2 of the trust as permitting an existing trustee to revoke the appointment of a
successor trustee, and (2) if not, whether Kathleen’s revocation of Karin’s appointment as
cotrustee was valid. Kathleen argued that Karin failed to present any circumstances that
would suggest section 2.2 meant anything other than “what its plain language says” and
thus no evidentiary hearing was necessary.
       Kathleen also addressed Karin’s argument that section 2.2 pertained to the
revocation of a successor trustee and that section 2.2 did not authorize the revocation of
Karin’s cotrustee designation. Kathleen argued:
       “[B]y Karin’s own reasoning, [Kathleen] had no power to appoint Karin as a ‘co-
Trustee’ in the first place because Section 2.2 only gave [Kathleen] power to appoint a
‘successor Trustee.’ So taking Karin’s argument to its logical extreme, the Court should
void her appointment as ‘co-Trustee’ because such appointment was unauthorized.
       “But the Court does not need to do that, for as we know the Court must construe
the trust in a manner that serves ‘the intent of the trustor’ and that will ‘give every
expression some effect, rather than one that will render any of the expressions
inoperative.’ Here, the clear intent of the Revocation Provision [in section 2.2] is to
preserve an appointed Trustee’s power to revoke his or her later appointment of another
Trustee. Whether that later-appointed Trustee is a ‘successor Trustee’ or a ‘co-Trustee’ is
immaterial, and to strictly apply such a distinction to the present circumstances would
subvert the intent of the trustor and render the Revocation Provision [in section 2.2]
inoperative.” (Fns. omitted.)
       E. The February 6, 2014 Hearing
       At the February 6, 2014 hearing on the matter, Kathleen, Karin, and their mother
Jeanne each appeared through separate counsel. Near the outset of the hearing, the

                                               8
probate court stated, “The clear reading of [section] 2.2 of the trust says nothing about a
cotrustee.” The court asked whether the word “cotrustee” appeared anywhere in the trust
instrument. Kathleen responded in the negative, and Karin indicated that the term
appeared in the trust instrument, but in a separate context.
       The court believed there was “no authority in the trust itself for Kathleen to name
Karin as cotrustee,” and asked, “Shouldn’t I just find it to be void in the inception and it
never should have happened in the first place?” Karin argued that the trust authorized
Jeanne to appoint successor trustees “in the plural,” and that Jeanne had done so by
appointing Karin and Kathleen. Jeanne disagreed, arguing that Kathleen did not have the
power to appoint Karin as cotrustee and that the court should “void” the entire
“transaction.” Kathleen believed that “voiding the initial appointment may be one
approach” to resolving the matter but expressed concern about the validity of transactions
that had taken place when the sisters were acting as cotrustees.
       Later, upon inquiry by the probate court, the parties addressed whether, if Karin
was validly appointed as cotrustee, Kathleen had the power under section 2.2 to revoke
the appointment. The court eventually stated that its tentative ruling was to find that
Kathleen did not have the authority to appoint Karin as cotrustee. The court asked the
parties about the implication for transactions that had already taken place.
       Ultimately, the probate court stated that “the threshold issue really is bifurcation.”
The court determined that, pursuant to Code of Civil Procedure section 598, it was
“efficient and appropriate” to bifurcate the issue of whether Kathleen had the power to
revoke the cotrustee status of Karin. The court stated that its finding was that Kathleen
“didn’t have the power to make the appointment in the first place, and so the power of
revocation is sort of moot.”




                                              9
       F. The Trial Court’s March 7, 2014 Order
       In a written order signed and filed March 7, 2014,2 the probate court explained
that it had conducted a hearing to address the application of section 2.2 of the trust to the
purported appointment of Karin as cotrustee and the revocation of that appointment. The
court ruled that the matter was “appropriate for bifurcation,” and that it “may consider
this matter without the need for extrinsic evidence.” The court determined that the
cotrustee appointment was “invalid and void since Section 2.2 of the Trust does not
provide for the appointment of a ‘Co-Trustee’ and only provides for appointment of a
‘successor Trustee.’ ” The court confirmed Kathleen as the sole trustee, based on
section 2.1 of the trust and Jeanne’s resignation. Lastly, the court confirmed all
transactions entered into by Kathleen and Karin in their purported capacity as cotrustees.
The court explained that the public had the right to rely on “the apparent Co-Trusteeship”
and that there was no need to disturb the validity of those transactions.3
                                    III. DISCUSSION
       Karin first contends that her appointment as cotrustee was valid because the trust
instrument gives Kathleen the power to appoint “successor co-trustees,” and the probate
court erred by failing to hold an evidentiary hearing to consider extrinsic evidence
regarding this construction of the trust instrument. Karin also argues that the briefing
procedure utilized by the probate court was improper. She contends that the briefing
procedure utilized by the court did not comply with the requirements for a summary
judgment motion, that in making its ruling the court relied on a ground that was not


       2
          The record on appeal contains an earlier-signed (February 2014) but later-filed
(March 12, 2014) order by the trial court that appears nearly identical to the March 7,
2014 order. The earlier-signed/later-filed order does not include as attachments the
exhibits that are referenced in the order, and it does not appear from the record on appeal
that this order was served on Karin.
        3
          Karin has appealed from the March 7, 2014 order. The order is appealable.
(Prob. Code, §§ 1304, subd. (a), 17200.)

                                             10
raised in Kathleen’s initial brief, and that the court ruled on an issue that was broader
than the issue that it had ordered the parties to brief.
       Kathleen responds that the probate court correctly construed the trust instrument
to preclude the appointment of a cotrustee, and that the court properly refused to consider
extrinsic evidence in making this determination. Kathleen further contends that Karin did
not have the right to an evidentiary hearing, that the court’s briefing process was proper,
that many of Karin’s procedural objections are waived, and that Karin fails to
demonstrate prejudice due to the court’s purported procedural errors.
       A. Construction of the Trust, Whether Extrinsic Evidence Was Necessary, and
an Whether an Evidentiary Hearing Was Required
       Karin first contends that the trust instrument gives Kathleen the power to appoint
“successor co-trustees,” and that the probate court erred by failing to hold an evidentiary
hearing to consider extrinsic evidence regarding this construction of the trust instrument.
We will set forth the general rules of interpreting a trust and then consider Karin’s
specific contentions.
                                   1. Trust interpretation
       “A trust is created by a manifestation of intention of the settlor to create a trust,
trust property, a lawful trust purpose, and an identifiable beneficiary. [Citations.]”
(Chang v. Redding Bank of Commerce (1994) 29 Cal.App.4th 673, 684.) “ ‘[T]he
primary rule in construction of trusts is that the court must, if possible, ascertain and
effectuate the intention of the trustor or settlor.’ [Citation.] ‘The intention of the
transferor as expressed in the [trust] instrument controls the legal effect of the
dispositions made in the instrument.’ (Prob. Code, §§ 21101, 21102.)” (Crook v.
Contreras (2002) 95 Cal.App.4th 1194, 1206.) “The words of an instrument are to
receive an interpretation that will give every expression some effect, rather than one that




                                               11
will render any of the expressions inoperative.” (Prob. Code, § 21120.)4 “All parts of an
instrument are to be construed in relation to each other and so as, if possible, to form a
consistent whole. If the meaning of any part of an instrument is ambiguous or doubtful, it
may be explained by any reference to or recital of that part in another part of the
instrument.” (§ 21121.)
       “ ‘In interpreting a document such as a trust, it is proper for the trial court in the
first instance and the appellate court on de novo review to consider the circumstances
under which the document was made so that the court may be placed in the position of
the testator or trustor whose language it is interpreting, in order to determine whether the
terms of the document are clear and definite, or ambiguous in some respect. [Citation.]
Thus, extrinsic evidence as to the circumstances under which a written instrument was
made is admissible to interpret the instrument, although not to give it a meaning to which
it is not reasonably susceptible. [Citation.]’ ” (Ike v. Doolittle (1998) 61 Cal.App.4th 51,
73 (Ike).) “An ambiguity in a written instrument exists when, in light of the
circumstances surrounding the execution of the instrument, ‘ “the written language is
fairly susceptible of two or more constructions.” [Citations].’ [Citation.]” (Id. at p. 74.)
       “ ‘ “ ‘The interpretation of a written instrument, including a . . . declaration of
trust, presents a question of law unless interpretation turns on the competence or
credibility of extrinsic evidence or a conflict therein. Accordingly, a reviewing court is
not bound by the lower court’s interpretation but must independently construe the
instrument at issue. [Citations.]’ [Citations.]” [Citation.]’ ” (Ike, supra, 61 Cal.App.4th
at p. 73.) Whether the instrument is ambiguous is also a question of law, and an appellate
court independently reviews the instrument to determine whether ambiguity exists. (See
Colonial Ins. Co. v. Montoya (1986) 184 Cal.App.3d 74, 82 (Colonial).)


       4
        All further statutory references are to the Probate Code unless otherwise
indicated.

                                              12
       In this case, we understand Karin to contend that the trust instrument reflects
the intent of the settlors, Raymond and Jeanne, to allow for cotrustees. Among
other provisions, Karin points to section 9.13 of the trust instrument which states:
“Section 9.13 Construction [¶] The following principles shall govern the interpretation
of the meaning of this instrument: [¶] (a) The masculine, feminine, or neuter gender,
and the singular or plural number, shall each include the other whenever the context so
indicates.” Karin contends that based on section 9.13(a) and certain other provisions,
“the settlors were obviously using the term, Trustee, to include the singular or plural
(which are co-trustees).”
       It is apparent from the trust instrument that the settlors, Raymond and Jeanne,
contemplated the existence of cotrustees, as they expressly designated themselves to
“initially act as Co-Trustees” in section 2.1. However, they also contemplated the
possibility that there might only be one trustee. For example, section 2.1 provides that if
one of them is unwilling to act as trustee, then the other spouse will “act as sole Trustee.”
Section 2.1 also provides that if they both do not want to act as trustee, then one of their
children, in the order designated in the trust instrument, will “act as Trustee.” Further, as
Karin points out, other provisions in the trust are drafted to accommodate the possibility
that there might be cotrustees, such as parents Raymond and Jeanne, or sole trustees, such
as one of their children.
       The relevant issue, however, is whether a provision in the trust instrument
authorizes Kathleen, as trustee, to appoint a cotrustee. “A trustee’s powers include those
specified in the trust instrument, those conferred by statute, and those needed to satisfy
the reasonable person and prudent investor standards of care in managing the trust.
[Citations.]” (Moeller v. Superior Court (1997) 16 Cal.4th 1124, 1129, fn. omitted.)
“Thus, in general, trustees are bound by the terms of the trust and possess only that
authority conferred upon them by the trust. [Citations.]” (Crocker-Citizens National
Bank v. Younger (1971) 4 Cal.3d 202, 211.)

                                             13
       In this case, Karin contends that section 2.2 permits Kathleen’s appointment of
“successor co-trustees,” and thus Kathleen could properly designate Karin as a cotrustee.
We are not persuaded by Karin’s argument that section 2.2 is susceptible to a
construction that Kathleen had the power to designate Karin as a cotrustee serving
simultaneously with Kathleen.
       To reiterate, sections 2.1 and 2.2 state as follows:
       “Section 2.1 Named Trustees [¶] We [Raymond and Jeanne] shall initially act as
Co-Trustees. If either of us is unable or unwilling to act as Trustee, whether by reason of
death, mental or physical incapacity . . . , then the other shall act as sole Trustee. If
neither of us can or desires to act as Trustee, then Kathleen M. Freuler shall act as
Trustee, followed if necessary by Karin J. Freuler and then Raymond G. Freuler, Jr.
       “Section 2.2 Designation by named Trustee [¶] Notwithstanding Section 2.1, a
person named in that Section who is then acting as Trustee (including either or both of
us) may designate a successor Trustee to act when he becomes unable or unwilling to act
as Trustee. The persons designated may be a successor Trustee named above or any
other natural person or entity, such as a bank or trust company. If one of the persons
named above makes such a designation, he or a successor to him named above may later
revoke that designation and either resume his duties as Trustee or designate some other
person or entity to so act. All such designations or revocations shall be made by written
instrument and shall be effective when a copy of that instrument is delivered to the
beneficiaries of the Trust for which the new Trustee is designated.”
       It is apparent from section 2.1 that Raymond and Jeanne contemplated cotrustees
as long as both of them were willing and able to serve as such. If neither one was willing
or able to serve, as occurred in this case, then section 2.1 specified the order in which
each of their children would have the opportunity to serve as sole trustee.
       Further, it is apparent that section 2.2 was intended to provide for a successor
trustee when the then-acting trustee no longer acted as trustee. The language of

                                              14
section 2.2 is not reasonably susceptible to Karin’s construction that a then-acting trustee
could designate a cotrustee, such that both people were serving as trustee at the same
time. The first sentence of section 2.2 states that a person “then acting as Trustee . . .
may designate a successor Trustee to act when he [or she] becomes unable or unwilling
to act as Trustee.” (Italics added.) After the then-acting trustee “makes such a
designation, he [or she] . . . may later revoke that designation and either resume his [or
her] duties as Trustee or designate some other person or entity to so act.” (Italics added.)
Section 2.2 therefore clearly contemplates that the then-acting trustee cease acting in that
role upon the newly-designated successor trustee stepping in and resume that role only
upon revocation of the designation of the successor trustee.
       In her reply brief on appeal, Karin argues that “unwillingness to act . . . is one of
degree,” and that an individual may be “unwilling to act alone” as trustee but “willing to
act as a co-trustee.” We are not persuaded by Karin’s proposed construction of the trust
instrument. Section 2.2 pertains to the designation of a “successor” trustee, which
necessarily implies that the trustee has stepped into the role after the prior trustee stops
acting in that role, as opposed to two trustees acting concurrently.
       In sum, none of the language identified by Karin in the trust instrument is
reasonably susceptible to the interpretation that Kathleen had the power to designate a
cotrustee, nor does any of the language identified by Karin in the trust instrument
otherwise reflect an intent by the settlors to provide a trustee with the power to designate
a cotrustee. To the contrary, the trust expressly provides that each child will individually
act as trustee in a specified order (that is, “Kathleen M. Freuler shall act as Trustee,
followed if necessary by Karin J. Freuler and then Raymond G. Freuler, Jr.”), and that a
successor may be designated if the trustee is unable or unwilling to act.




                                              15
                                   2. Extrinsic evidence
       Karin contends that the probate court should have provided her with the
opportunity to present extrinsic evidence regarding her construction of the trust
instrument that Kathleen had the power to appoint successor co-trustees.
       As we stated above, “ ‘extrinsic evidence as to the circumstances under which a
written instrument was made is admissible to interpret the instrument.’ ” (Ike, supra, 61
Cal.App.4th at p. 73.) In Estate of Russell (1968) 69 Cal.2d 200 (Russell), the California
Supreme Court set forth the rules for extrinsic evidence and the interpretation of a will.
Those rules are pertinent to the interpretation of the trust instrument in this case.
(Citizens Business Bank v. Carrano (2010) 189 Cal.App.4th 1200, 1205 (Citizens
Business Bank).)
       The Russell court explained that “extrinsic evidence is admissible ‘to explain any
ambiguity arising on the face of a will, or to resolve a latent ambiguity which does not so
appear.’ [Citations.]” (Russell, supra, 69 Cal.2d at pp. 206-207, fn. omitted.) Ambiguity
exists “when, in the light of the circumstances surrounding the execution of an
instrument, ‘the written language is fairly susceptible of two or more constructions.’
[Citations.]” (Id. at pp. 211-212.) An uncertainty that appears on the face of a will is a
patent ambiguity. (Id. at p. 207.) “A latent ambiguity is one which is not apparent on
the face of the will but is disclosed by some fact collateral to it. [Citations.]” (Ibid.)
“Typically, latent ambiguities arise where two persons or things answer the description of
a bequest, or where there is a mistaken description and one or more persons match a
portion of the bequest. [Citation.]” (Citizens Business Bank, supra, 189 Cal.App.4th at
p. 1205; accord, Russell, supra, at p. 207.)
       The Russell court held that “it cannot always be determined whether the will is
ambiguous or not until the surrounding circumstances are first considered.” (Russell,
supra, 69 Cal.2d at p. 213.) The court explained that, “[i]n order to determine initially
whether the terms of any written instrument are clear, definite and free from ambiguity

                                               16
the court must examine the instrument in the light of the circumstances surroundings its
execution so as to ascertain what the parties meant by the words used. Only then can it
be determined whether the seemingly clear language of the instrument is in fact
ambiguous. ‘Words are used in an endless variety of contexts. Their meaning is not
subsequently attached to them by the reader but is formulated by the writer and can only
be found by interpretation in the light of all the circumstances that reveal the sense in
which the writer used the words. The exclusion of parol evidence regarding such
circumstances merely because the words do not appear ambiguous to the reader can
easily lead to the attribution to a written instrument of a meaning that was never
intended.’ [Citation.] ‘The court must determine the true meaning of the instrument in
the light of the evidence available. It can neither exclude extrinsic evidence relevant to
that determination nor invoke such evidence to write a new or different instrument.’
(. . . [S]ee also Corbin, The Interpretation of Words and the Parol Evidence Rule (1965)
50 Cornell L.Q. 161, 164: ‘[When] a judge refuses to consider relevant extrinsic evidence
on the ground that the meaning of written words is to him plain and clear, his decision is
formed by and wholly based upon the completely extrinsic evidence of his own personal
education and experience’ . . . .)” (Id. at pp. 208-209, italics omitted.)
       The Russell court thus stated that it was “self-evident that in the interpretation of a
will, a court cannot determine whether the terms of the will are clear and definite in the
first place until it considers the circumstances under which the will was made so that the
judge may be placed in the position of the testator whose language he is interpreting.
[Citation.] Failure to enter upon such an inquiry is failure to recognize that the ‘ordinary
standard or “plain meaning,” is simply the meaning of the people who did not write the
document.’ [Citation.]” (Russell, supra, 69 Cal.2d at pp. 210-211, fn. omitted.)
       In sum, the Russell court “made clear that extrinsic evidence could be used not
only to resolve a patent ambiguity, but also to identify a latent ambiguity.” (Estate of Dye
(2001) 92 Cal.App.4th 966, 978 (Dye).) “Accordingly, ‘[e]ven if a contract appears

                                              17
unambiguous on its face, a latent ambiguity may be exposed by extrinsic evidence which
reveals more than one possible meaning to which the language of the contract is yet
reasonably susceptible.’ [Citation.] ‘The test of admissibility of extrinsic evidence to
explain the meaning of a written instrument is not whether it appears to the court to be
plain and unambiguous on its face, but whether the offered evidence is relevant to prove a
meaning to which the language of the instrument is reasonably susceptible.’ [Citation.]”
(Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 391 (Dore).)
       In Russell, the California Supreme Court determined that extrinsic evidence was
“properly considered in order to ascertain what testatrix meant by the words of the will,
including the words: ‘I leave everything I own Real & Personal to Chester H. Quinn &
Roxy Russell.’ ” (Russell, supra, 69 Cal.2d at p. 214.) Specifically, extrinsic evidence
was properly admitted “to raise and resolve the latent ambiguity as to Roxy Russell and
ultimately to establish that Roxy Russell was a dog.” (Ibid.)
       However, the Russell court also stated that “extrinsic evidence as to the
circumstances under which a written instrument was made is ‘ “admissible to interpret
the instrument, but not to give it a meaning to which it is not reasonably susceptible”
[citation], and it is the instrument itself that must be given effect. [Citations.]’
[Citation.]” (Russell, supra, 69 Cal.2d at p. 211, fn. omitted.) In other words, “an
ambiguity, whether patent or latent, must reside in the will. ‘[T]he court must attempt to
ascertain the intent of the testator by examining the will as a whole and the circumstances
surrounding its execution.’ [Citations.] A court cannot ‘ “invoke [extrinsic] evidence to
write a new or different instrument.” ’ (Russell, supra, 69 Cal.2d at p. 209.)” (Dye,
supra, 92 Cal.App.4th at p. 978.) Thus, as one appellate court has explained, “extrinsic
evidence cannot be used to show that when the parties said ‘Bunker Hill Monument’ they
meant ‘the Old South Church’ or that when they said ‘pencils’ they really meant ‘car
batteries.’ [Citations.]” (Curry v. Moody (1995) 40 Cal.App.4th 1547, 1554 (Curry).)



                                              18
       Thus, “ ‘[t]he decision whether to admit parol [or extrinsic] evidence involves a
two-step process. First, the court provisionally receives (without actually admitting) all
credible evidence concerning the parties’ intentions to determine “ambiguity,” i.e.,
whether the language is “reasonably susceptible” to the interpretation urged by a party.
If in light of the extrinsic evidence the court decides the language is “reasonably
susceptible” to the interpretation urged, the extrinsic evidence is then admitted to aid in
the second step--interpreting the [instrument]. [Citation.]’ ” (Estate of Kaila (2001) 94
Cal.App.4th 1122, 1133 (Kaila).)
       The probate court in this case sought briefing from the parties regarding whether
the validity of Kathleen’s action in revoking Karin as trustee “present[ed] a purely legal
issue that can be resolved without extrinsic evidence.” We agree with Karin that, as a
general legal proposition, extrinsic evidence is admissible to identify, as well as to
resolve, an ambiguity in a written instrument. (Russell, supra, 69 Cal.2d at pp. 206-212;
Dore, supra, 39 Cal.4th at p. 391; Dye, supra, 92 Cal.App.4th at 978; Kaila, supra, 94
Cal.App.4th at p. 1135 [“extrinsic evidence is admissible to determine if an ambiguity
exists and to interpret” a clause in a will].)
       In this particular case, however, Karin failed to identify in the trust instrument a
patent ambiguity, which would make extrinsic evidence admissible to resolve such an
ambiguity. (See Russell, supra, 69 Cal.2d at p. 206.) She also failed to identify a latent
ambiguity, or articulate the nature of the extrinsic evidence that would establish a latent
ambiguity, such that the extrinsic evidence would show that the language of the trust
instrument was reasonably susceptible to more than one possible meaning. (Dore, supra,
39 Cal.4th at p. 391.)
       On appeal, Karin primarily relies on section 2.2, regarding the power of a trustee
to designate a successor, and section 9.13(a), regarding the singular including the plural,
to contend that Kathleen had the authority to appoint a cotrustee. As we have explained,
however, the language of the trust instrument is not reasonably susceptible to this

                                                 19
construction. In fact, the language of the trust is expressly to the contrary, that is, only
one sibling may serve as trustee at a time, and a trustee must stop acting as trustee in
order for a designated successor trustee to assume that role.
       In the absence of Karin identifying language in the trust instrument that is
reasonably susceptible to the interpretation that a trustee has the power to appoint a
cotrustee, and in the absence of her persuasively articulating at least a theory as to what
type of extrinsic evidence would support this construction of any specifically-identified
trust language, Karin failed to demonstrate that extrinsic evidence was relevant and
admissible in this case. Moreover, even assuming Karin could produce extrinsic evidence
that Raymond and Jeanne intended for a trustee serving after them to have the ability to
appoint a cotrustee, and even if Karin has evidence that the family and various attorneys
believed after the trust instrument was executed that the instrument gave a trustee the
power to appoint a cotrustee, none of the trust language that Karin identified is
reasonably susceptible to an interpretation that a trustee succeeding Raymond and Jeanne
held such a power. Under the circumstances, Karin failed to demonstrate that she was
entitled to present extrinsic evidence in connection with the court’s interpretation of the
trust instrument. (See Russell, supra, 69 Cal.2d at pp. 209, 211; Kaila, supra, 94
Cal.App.4th at p. 1133; Dye, supra, 92 Cal.App.4th at p. 978; Curry, supra, 40
Cal.App.4th at p. 1554.)
       In sum, Karin failed to identify a patent ambiguity in the trust instrument
concerning the power of an acting trustee to appoint a cotrustee. She also failed to
identify a latent ambiguity and articulate what type of extrinsic evidence would establish
the latent ambiguity. In the absence of ambiguity in the trust instrument regarding a
trustee’s power to appoint a cotrustee, Karin failed to demonstrate the need for extrinsic
evidence on this issue of trust interpretation.




                                              20
                                  3. Evidentiary hearing
       Karin contends that, because she was entitled to present extrinsic evidence
regarding her construction of the trust instrument, the probate court should have held an
evidentiary hearing to consider such evidence. As we have just explained, however,
Karin failed to demonstrate that there was relevant and admissible extrinsic evidence
concerning the proper construction of the trust instrument.
       Karin also contends that she was entitled to an evidentiary hearing because the
matter at issue – construction of the trust instrument – was contested.
       In a proceeding under the Probate Code, “[a]n affidavit or verified petition shall be
received as evidence when offered in an uncontested proceeding.” (§ 1022.) On the
other hand, “[w]hen a petition is contested, . . . ‘affidavits and verified petitions may not
be considered as evidence at a contested probate hearing.’ [Citation.] Rather, absent a
stipulation among the parties to the contrary, each allegation in a verified petition and
each fact set forth in a supporting affidavit must be established by competent evidence.’
[Citations.]” (Estate of Lensch (2009) 177 Cal.App.4th 667, 676 (Lensch).) Under that
general rule, where a party opposing a motion in probate court requests an evidentiary
hearing on the ground that there are “factual conflicts presented by the parties’ competing
declarations” (Estate of Bennett (2008) 163 Cal.App.4th 1303, 1309 (Bennett)), the trial
court commits reversible error in denying the request for an evidentiary hearing (id. at
pp. 1309-1310). (See also Lensch, supra, at pp. 676-677, 678.)
       Relevant to this appeal, the contested issue between Karin’s July 2013 petition
initiating the action and Kathleen’s November 2013 objection to the petition was
whether Kathleen had the power to appoint and to revoke the appointment of Karin as
cotrustee. Based on the parties’ arguments in this case, the evidence relevant to the
probate court’s determination of the validity of the appointment or revocation under the
trust was: (1) the trust instrument, (2) Jeanne’s written resignation as trustee,
(3) Kathleen’s written designation of Karin as cotrustee, and (4) Kathleen’s written

                                              21
revocation of that designation. Copies of all these documents were attached to Karin’s
verified petition initiating the action, as well as to Kathleen’s verified objection to the
petition. Not surprisingly therefore, neither Karin nor Kathleen questioned the
authenticity of these documents either below or on appeal. As we have explained, Karin
failed to establish that the interpretation of the trust instrument required extrinsic
evidence. Thus, the interpretation issue – including whether the trust instrument was
ambiguous – presented only a question of law, and not a question of fact, for the probate
court. (Ike, supra, 61 Cal.App.4th at p. 73; see Colonial, supra, 184 Cal.App.3d at p. 82.)
In the absence of any material factual conflict arising from Karin’s petition on the issue
of the validity of the appointment or revocation under the trust, we find no basis for
remanding the matter for an evidentiary hearing. (See Lensch, supra, 177 Cal.App.4th at
pp. 676-677, 678; Bennett, supra, 163 Cal.App.4th at pp. 1309-1310; Evangelho v.
Presoto (1998) 67 Cal.App.4th 615, 620-621.)
       B. Briefing Procedure
       Karin contends that the briefing procedure utilized by the probate court was
improper. We do not find any of her contentions persuasive.
         1. Lack of compliance with summary judgment motion procedures
       Karin first contends that the briefing procedure did not comply with the
requirements for a summary judgment motion.
       Karin fails to articulate a persuasive argument as to why the probate court was
required to follow the procedural requirements for a summary judgment motion under
Code of Civil Procedure section 437c. The record does not reflect that either the parties
or the court contemplated the matter being briefed, heard, or resolved pursuant to that
section. Thus, not surprisingly, neither the parties nor the court followed the procedural
requirements of that section. Instead, the parties briefed, and the probate court ruled on,
whether an evidentiary hearing was needed in order to determine the validity of the
revocation under the trust, and whether that issue should be bifurcated under Code of

                                              22
Civil Procedure section 598.5 The briefing schedule was set pursuant to, and the parties
followed, the timeframes generally applicable to motions. (See Code Civ. Proc., § 1005,
subd. (b).) Karin fails to provide persuasive legal authority establishing that this process
by the court was improper.
       Moreover, although Karin observes that the procedures applicable to a summary
judgment motion provide the parties with a longer briefing period and the opportunity to
request a continuance in order to conduct discovery, the record on appeal does not reflect
that Karin requested either a longer briefing period or a continuance to conduct
discovery.
       Karin observes that a party moving for summary judgment must file a separate
statement of undisputed material facts. She contends that she “was not placed on notice
of the facts that Kathleen contended were undisputed.”
       We are not persuaded by Karin’s lack of notice argument. The purpose of the
parties’ briefing was to identify what, if any, factual conflict existed on the issue of the
validity of the revocation under the trust, such that the probate court needed to hold an
evidentiary hearing rather than deciding the issue as a matter of law. It was clear from
Kathleen’s opening brief in the probate court that she believed all facts pertinent to the
validity of the revocation and the construction of the trust instrument were undisputed
and that therefore no evidentiary hearing was needed. Indeed it was readily apparent
from Kathleen’s opening brief in the probate court that she considered the relevant


       5
          Code of Civil Procedure section 598 states in part: “The court may, when the
convenience of witnesses, the ends of justice, or the economy and efficiency of handling
the litigation would be promoted thereby, on motion of a party, after notice and hearing,
make an order, no later than the close of pretrial conference in cases in which such
pretrial conference is to be held, or, in other cases, no later than 30 days before the trial
date, that the trial of any issue or any part thereof shall precede the trial of any other issue
or any part thereof in the case, except for special defenses which may be tried first
pursuant to Sections 597 and 597.5. The court, on its own motion, may make such an
order at any time.”

                                              23
undisputed facts to be: (1) the content of the trust instrument, (2) Jeanne’s written
resignation, (3) Kathleen’s written designation of Karin as cotrustee, and (4) Kathleen’s
written revocation of the designation, as those four documents were the only pieces of
relevant evidence specifically cited and discussed in the introduction and/or factual
background of her opening brief.
       Further, Karin never raised an objection below to the briefing process on the
ground that the matter should be handled according to the procedures applicable to a
summary judgment motion. Karin has therefore forfeited any claim that the court’s
briefing process essentially set up a motion for summary judgment that was brought
without proper notice. (See Pacific Std. Life Ins. Co. v. Tower Industries, Inc. (1992)
9 Cal.App.4th 1881, 1887, 1888 (Pacific).)
       Additionally, Karin fails to establish prejudice as a result of the briefing process
utilized by the court. “[A]n appellant has the burden to show not only that the trial court
erred but also that the error was prejudicial. [Citations.] Error is prejudicial if it is
reasonably probable that a result more favorable to the appellant would have been
reached absent the error. [Citations.]” (Red Mountain, LLC v. Fallbrook Public Utility
Dist. (2006) 143 Cal.App.4th 333, 347-348 (Red Mountain).) As we explained above,
Karin has failed to demonstrate that the trust instrument is reasonably susceptible to the
interpretation that Kathleen had the power to appoint a cotrustee. Accordingly, if “this
court remand[ed] the action to the trial court so that a so-called properly noticed motion
for [summary] judgment could be brought,” “the result would be the same because no
triable issue of fact remains and judgment for [Kathleen] would, again, be the necessary
result.” (Pacific, supra, 9 Cal.App.4th at p. 1888.)
   2. Court’s ruling addressing appointment power rather than revocation power
       Karin argues that it was improper for the probate court to determine that Kathleen
lacked the power to appoint a cotrustee when Kathleen did not make this argument in her
opening brief filed with the probate court.

                                               24
       As we set forth above, Kathleen argued in her opening brief in the probate court
that section 2.2 of the trust provided the authority for her to revoke the cotrustee
appointment of Karin.
       In opposition, Karin contended that section 2.2 “does not provide” that she, as
cotrustee, “may . . . be unilaterally removed by” the other cotrustee Kathleen. In
particular, Karin argued that section 2.2 pertained to “the designation of a successor
trustee.” According to Karin, “[s]ection 2.2 thus provides that an acting Trustee who
becomes ‘unwilling or unable’ to act may appoint his or her successor, and provides
further that if the prior trustee again becomes willing and able to act, he or she may
‘resume’ that role.” Karin contended that the trust was actually silent on the issue of
whether she could be unilaterally removed as cotrustee by Kathleen.
       In reply, Kathleen contended: “[B]y Karin’s own reasoning, [Kathleen] had no
power to appoint Karin as a ‘co-Trustee’ in the first place because Section 2.2 only gave
[Kathleen] power to appoint a ‘successor Trustee.’ So taking Karin’s argument to its
logical extreme, the Court should void her appointment as ‘co-Trustee’ because such
appointment was unauthorized. [¶] But the Court does not need to do that, for as we
know the Court must construe the trust in a manner that serves ‘the intent of the trustor’
and that will ‘give every expression some effect, rather than one that will render any of
the expressions inoperative.’ Here, the clear intent of the Revocation Provision [in
section 2.2] is to preserve an appointed Trustee’s power to revoke his or her later
appointment of another Trustee. Whether that later-appointed Trustee is a ‘successor
Trustee’ or a ‘co-Trustee’ is immaterial, and to strictly apply such a distinction to the
present circumstances would subvert the intent of the trustor and render the Revocation
Provision [in section 2.2] inoperative.” (Fns. omitted.)
       At the February 6, 2014 hearing on the matter, the probate court stated near the
outset of the hearing that “[t]he clear reading of [section] 2.2 of the trust says nothing
about a cotrustee.” Shortly thereafter, the court expressed its belief that there was

                                              25
“no authority in the trust itself for Kathleen to name Karin as cotrustee,” and asked,
“Shouldn’t I just find it to be void in the inception and it never should have happened in
the first place?” After hearing extensive argument from the parties, the court stated,
“[T]he issue that we have today is, did Kathleen, A, have the authority to appoint Karin
as cotrustee? I find she did not, and so Karin was never validly a costrustee. And so
that’s in the nature of a tentative ruling . . . .” After hearing further argument from the
parties, the court stated its finding that Kathleen “didn’t have the power to make the
appointment in the first place, and so the power of revocation is sort of moot.” In its
subsequent written order, the court concluded that Kathleen’s cotrustee appointment of
Karin was “invalid and void since Section 2.2 of the Trust does not provide for the
appointment of a ‘Co-Trustee’ and only provides for appointment of a ‘successor
Trustee.’ ” (Italics omitted.)
       The record reflects that the probate court adopted a construction of the trust that
was initially raised by Karin, that is, section 2.2 pertains to a trustee’s power to appoint
and revoke the appointment of a successor trustee and the section does not address a
trustee’s powers with respect to a cotrustee. We therefore are not persuaded by Karin’s
argument on appeal that she was “deprived of [the] ability to respond to the new ground”
raised in Kathleen’s reply brief that was filed in the probate court.
       Further, the probate court clearly indicated from the outset of the February 6, 2014
hearing that it was concerned about Kathleen’s power to appoint a cotrustee, as a matter
preliminary to the issue of whether she also had the power to revoke the appointment.
Karin had ample opportunity at the hearing to object to the court raising the preliminary
issue of Kathleen’s power to appoint. Although Karin offered substantive arguments at
the hearing, she never raised any procedural objection to the court’s consideration of the
appointment issue and she never requested a continuance for further opportunity to brief
or argue the appointment issue.



                                              26
       “ ‘[I]t is well settled that the appearance of a party at the hearing of a motion and
his or her opposition to the motion on its merits is a waiver of any defects or irregularities
in the notice of the motion. [Citations.] This rule applies even when no notice was given
at all. [Citations.] Accordingly, a party who appears and contests a motion in the court
below cannot object on appeal or by seeking extraordinary relief in the appellate court
that he had no notice of the motion or that the notice was insufficient or defective.’
[Citations.]” (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288 (Reedy).)
       For example, in Kowalski v. Cohen (1967) 252 Cal.App.2d 977 (Kowalski), the
plaintiff argued on appeal that the defendants failed to give proper notice of a motion to
dismiss the complaint on the basis of a discretionary two-year provision of a statute.
(Id. at p. 979.) The notice of motion identified only a five-year provision of the statute.
(Ibid.) However, the plaintiff had appeared at the hearings on the motion, both periods of
limitation were argued by the plaintiff, and the plaintiff did not make any objection based
on lack of notice. The appellate court determined that the “[p]laintiff’s appearance and
participation at the hearings operated as a waiver of any objections he may have had
predicated upon an asserted lack of notice [citation].” (Ibid.)
       When an appellate court refuses to consider procedural defects or erroneous
rulings where an objection could have been, but was not, made in the trial court, the
explanation is “ ‘ “ ‘[o]ften . . . that it is unfair to the trial judge and to the adverse party
to take advantage of an error on appeal when it could easily have been corrected at the
trial.’ [Citation.]” [Citations.] [¶] Moreover, it would be inappropriate to allow a party
not to object to an error of which the party is or should be aware, “ ‘thereby permitting
the proceedings to go to a conclusion which he [or she] may acquiesce in, if favorable,
and which he [or she] may avoid, if not.’ [Citation.]” [Citation.]’ ” (In re Carrie W.
(2003) 110 Cal.App.4th 746, 755.)
       In this case, the probate court made clear at the February 6, 2014 hearing that it
was considering the preliminary question of whether Kathleen had the power to appoint a

                                               27
cotrustee before reaching the issue of whether Kathleen also had the power to revoke the
cotrustee’s designation. Karin never objected to the court’s consideration of the
appointment issue. In fact, she argued the merits of the appointment issue, which was
inextricably tied to the cotrustee revocation issue. Under the circumstances, Karin has
forfeited any objection to the court’s consideration of the cotrustee appointment issue
based on inadequate notice. (Reedy, supra, 148 Cal.App.4th at p. 1288; Kowalski, supra,
252 Cal.App.2d at p. 979.)
       Moreover, even assuming it was error for the probate court to reach the
preliminary issue of Kathleen’s power of appointment instead of only addressing her
power to revoke an appointment, Karin fails to demonstrate prejudice. “In order to obtain
a reversal based upon such a procedural flaw [as inadequate notice], the appellant must
demonstrate not only that the notice was defective, but that he or she was prejudiced.
[Citations.]” (Reedy, supra, 148 Cal.App.4th at p. 1289; see Red Mountain, supra, 143
Cal.App.4th at pp. 347-348.) As we have explained, Karin fails to identify any language
in the trust instrument that is reasonably susceptible to an interpretation that a trustee has
the power to appoint a cotrustee.
                                    3. Scope of briefing
       Karin contends that the probate court, in making its ruling, ruled on an issue that
was broader than the issue that it had ordered the parties to brief. In particular, Karin
argues that the court initially sought briefing on whether the validity of the cotrustee
revocation was a purely legal issue that could be resolved without extrinsic evidence.
She contends that the court did not simply rule on whether extrinsic evidence was
necessary, but also proceeded to make a determination as to the proper construction of
the trust instrument.
       The probate court set a briefing schedule for a hearing on whether the matter could
be resolved without extrinsic evidence. The court stated: “I’m inclined to . . . have the
parties brief the threshold issue which is, does the validity of revocation in fact present a

                                              28
purely legal issue that can be resolved without extrinsic evidence? And I’ll give you a
hearing date which will just be for argument on the briefs that you’ve submitted on those
issues and then depending how that comes out, we’ll either have a more fully blown
evidentiary hearing with extrinsic evidence or it’s going to be resolved as a purely legal
issue.”
          After receiving written briefs and hearing argument from the parties, the court
determined that, pursuant to Code of Civil Procedure section 598, it was “efficient and
appropriate” to bifurcate the issue of whether Kathleen had the power to revoke the
cotrustee status of Karin. The court stated that its finding was that Kathleen “didn’t have
the power to make the appointment in the first place, and so the power of revocation is
sort of moot.” In its written order, the court explained that the issue of the application of
the trust to the appointment and revocation of appointment was “appropriate for
bifurcation,” and that it “may consider this matter without the need for extrinsic
evidence.” The court determined that the cotrustee appointment was “invalid and void
since Section 2.2 of the Trust does not provide for the appointment of a ‘Co-Trustee’ and
only provides for appointment of a ‘successor Trustee.’ ” (Italics omitted.) The court
confirmed Kathleen as the sole trustee, based on section 2.1 of the trust and Jeanne’s
resignation.
          The record thus reflects that the probate court initially sought briefing on the issue
of whether the validity of the cotrustee revocation by Kathleen “present[ed] a purely legal
issue that [could] be resolved without extrinsic evidence.” Significantly, the court also
stated to the parties that “depending how that comes out, we’ll either have a more full
blown evidentiary hearing with extrinsic evidence or it’s going to be resolved as a purely
legal issue.” (Italics added.)
          In order to properly address whether the validity of the revocation could be
resolved as a matter of law and without extrinsic evidence, the parties necessarily had to,
and did, make arguments in their briefs and orally at the hearing about the proper

                                                29
construction of the trust. After receiving the parties’ arguments and determining that
extrinsic evidence was not necessary, the court proceeded to interpret the trust on the
issue of the validity of the cotrustee appointment and revocation. Although Karin
contends that the matter should have been set for further briefing on the proper
interpretation of the trust upon the court determining that extrinsic evidence was not
necessary, it is apparent that the court contemplated and conveyed to the parties when the
briefing schedule was originally set that a ruling on the interpretation issue might occur
without the need for further hearing if it was “going to be resolved as a purely legal
issue.”
          Even assuming the probate court should have provided Karin with the opportunity
for further briefing on the legal issue of the proper interpretation of the trust, Karin fails
on appeal to persuasively articulate a construction of the trust that would have resulted in
a different result, that is, a construction of the trust that gave Kathleen the power to
appoint a cotrustee. Accordingly, Karin fails to show prejudice from the court’s failure to
allow further briefing. (Reedy, supra, 148 Cal.App.4th at p. 1289; Red Mountain, supra,
143 Cal.App.4th at pp. 347-348.)
          In sum, we conclude that Karin’s claims of error regarding the briefing procedure
do not warrant remand of the matter.
                                     IV. DISPOSITION
          The March 7, 2014 order is affirmed. The parties shall bear their own costs on
appeal.




                                              30
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MIHARA, J.




Freuler v. Freuler
H041000
