Filed 5/29/18




                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FOURTH APPELLATE DISTRICT

                                       DIVISION THREE


THOMAS E. MORGAN, as Trustee, etc.,

    Petitioner,

        v.                                              G055377

THE SUPERIOR COURT OF ORANGE                            (Super. Ct. No. 30-2014-00726771)
COUNTY,
                                                        OPINION
    Respondent;

NANCY MORGAN SHURTLEFF et al.,

    Real Parties in Interest.



                  Original proceedings; petition for a writ of mandate to challenge orders of
the Superior Court of Orange County, Kim R. Hubbard, Judge. Petition denied.
                  Law Offices of Richard Pech, Richard Pech; Greenberg Taurig and Scott D.
Bertzyk for Petitioner.
                  No appearance for Respondent.
              Garvey Schubert Barer, Bruce A. McDermott and Daniel J. Vecchio for
Real Parties in Interest Nancy Morgan Shurtleff, John Morgan, Jessica Shurtleff, and
Kathleen Shurtleff.
              Roehl & Glowacki, Cynthia V. Roehl, John P. Glowacki; Carico
Macdonald Kil & Benz, Christopher D. Carico and William G. Benz for Real Parties in
Interest Bruce Hitchman and Lee Ann Hitchman.
                                  *           *           *
                                       INTRODUCTION
              The Probate Code provides that a trust’s provisions may not absolve a
trustee from liability due to intentional misconduct, gross negligence, or reckless
indifference. The trust instrument here purports to allow the former trustee to withhold
from a successor trustee all of his or her communications with legal counsel. Consistent
with statute and case law, we hold a trust may not allow a former trustee to withhold from
a successor trustee all communications between that former trustee and the trust’s legal
counsel. The attorney-client privilege vests in the office of the trustee, not in any
particular person. A provision permitting a trustee to withhold documents from a
successor trustee violates public policy and is unenforceable. Allowing a former trustee
to withhold from a successor trustee communications with the trust’s former legal
counsel would permit a trustee to intentionally (or with gross negligence or reckless
indifference) violate duties with no check on his or her conduct.
              The trial court ordered the former trustee to turn over specified
communications with the trust’s former legal counsel to the successor trustees and their
current legal counsel. The former trustee seeks a writ of mandate to reverse the trial
court’s order. We deny the petition.




                                              2
                    STATEMENT OF FACTS AND PROCEDURAL HISTORY
              A. The Trust
                                             1
              Beverly C. Morgan (Beverly) amended and completely restated the
Beverly C. Morgan Family Trust on November 6, 2013 (the Trust). Beverly had three
adult children: Thomas Edward Morgan III (Thomas), Nancy Morgan Shurtleff (Nancy),
and John Evans Morgan (John). Nancy, John, and Nancy’s daughters Kathleen Shurtleff
and Jessica Shurtleff are referred to collectively as the Shurtleffs. Beverly was the initial
trustee of the Trust. Thomas was named as the successor trustee.
              B. Beverly Dies; Thomas Becomes Trustee.
              Beverly died in January 2014, and Thomas succeeded her as trustee.
Litigation began almost immediately thereafter. In May 2014, Nancy filed a petition to
construe the Trust’s terms, asking that the Trust be reformed or invalidated on grounds of
lack of capacity, undue influence, and fraudulent misrepresentations. Nancy filed another
petition in September 2014 asking that the Trust be reformed or invalidated, that Thomas
be deemed to have predeceased Beverly, and that Thomas be removed as trustee, among
other things. In November 2014, Nancy filed a petition to remove Thomas, suspend his
powers as trustee, and direct Thomas to turn over the Trust’s assets and records to Nancy
or to a temporary trustee.
              Two years later, Nancy filed a new motion to suspend Thomas as trustee
based on his alleged misuse of his powers to further his own litigation goals and
strategies to the detriment of the Trust’s other beneficiaries. Nancy alleged that Thomas
spent Trust funds on his personal attorneys, engaged in self-dealing as trustee by using
Trust funds for his personal benefit, and caused businesses owned by the Trust to engage
in undocumented, inter-company, interest-free “loans” totaling millions of dollars.


       1
          Many of the individuals involved in this appeal share a surname. For clarity, we
will use first names; we intend no disrespect.

                                                 3
              The trial court denied the motion to suspend Thomas, conditioned on the
following: (1) Thomas would not use Trust funds to pay for his personal defense in the
litigation with the Shurtleffs; (2) Thomas would not in any way impair the Trust assets
and would not cause the Trust to borrow money; and (3) Thomas would file an
accounting of all Trust assets used to pay his personal litigation expenses and of all loans
made by or to the Trust. After Thomas filed the accounting, the court, sua sponte, issued
an order finding the accounting was “so inadequate that its filing appears to be for the
sole purpose of paying lip service to the Court’s Order.”

              C. The Trial Court Suspends Thomas as Trustee; the Hitchmans are
              Named Interim Co-trustees.
              On April 4, 2017, the court suspended Thomas as trustee and appointed
Bruce Hitchman and Lee Ann Hitchman of Hitchman Fiduciaries (the Hitchmans) as
interim co-trustees. The court ordered Thomas to cooperate with the Hitchmans, and
specifically ordered Thomas to “transfer and deliver to the Interim Co-Trustees all
communications, including, but not limited to, letters, e-mails, facsimile transmissions,
and text messages between Thomas Morgan and any person or entity on behalf of the
Trust; [¶] . . . [¶] deliver to the Interim Co-Trustees any and all current and historical
account statements, cancelled checks, documents and records concerning the
Beverly C. Morgan Family Trust, its transactions and its assets.”
              Between April and June, the Hitchmans filed three status reports in which
they informed the court: “Counsel for the Suspended Trustee has indicated that he does
not intend to turn over attorney-client communications or billing invoices.” Thomas and
his counsel refused to turn over the requested documents based on language in paragraph
10.11 of the Trust, and statutory and case law.




                                               4
               D. The Trial Court Orders Thomas to Give Documents to the
               Hitchmans and the Hitchmans’ Counsel.
               The trial court held a trial setting conference and review hearing in
June 2017. After discussing Thomas’s refusal to provide the Hitchmans with
communications between Thomas and the Trust’s counsel while Thomas was trustee, the
court stated: “[T]here is to be a turnover of invoices, billing statements, and fee
agreements. . . . [¶] Those will be produced to the Hitchmans only, not for review by
other counsel. I don’t want to see redactions, but once the issue of whether or not these
fees were paid personally—and by the way, counsel, I think you are incorrect. As the
trustee, he has a duty to know what’s going on. As the trustee, he has a duty to not pay
his own fees, whether he’s the sole beneficiary or not, until the matter has been wound
up. And it has not been wound up here and we don’t know how this is going to fall out.
[¶] . . . [¶] . . . He, as a fiduciary, [cannot] use trust assets to pay his own trust expense, I
don’t care if he was a sole beneficiary or not, it would have been inappropriate.” The
minute order following that hearing reads, in relevant part: “All invoices, billings, fee
agreements, copies of checks and wire transfers used to pay any of the [sic] mentioned
herein are to be turned over to the Hitchmans and their attorney only.”
               When the hearing reconvened two days later, the issue of the billing
statements and invoices came up again.
               “Mr. Garrett [counsel for John, Jessica Shurtleff, and Kathleen Shurtleff]:
It’s extremely important on the preserve and protect aspect that those billing records be
turned over. They will fight tooth and nail about that and that was the reason for the
ex parte today. [¶] . . . [¶]
               “The Court: How soon can you provide the records?
               “Mr. Pech [Thomas’s counsel]: Which records, your honor?
               “The Court: The ones I ordered Monday.




                                                5
              “Mr. Pech: The ones you ordered Monday? You mean my invoices, your
Honor?
              “The Court: Yes.
              “Mr. Pech: That’s correct. So we’ll have a formal order today; correct?
We’re going to have a formal order as to everything the court has ordered for Monday
and today?
              “The Court: The minute order’s right here, counsel. We’ll be happy to
give [you] a copy. [¶] [As read]: [¶] . . . [¶] [F]or your fees, counsel, all invoices,
billing[s,] fee agreements, copies of checks and wire transfers used to pay any of the
attorneys’ fees and costs mentioned herein. [¶] . . . [¶]
              “Mr. Pech: And also, your Honor, as part of that, when the court said on
Monday, it only goes to Mr. Glowacki [Hitchmans’ counsel] here because obviously
Mr. Garrett—
              “The Court: It’s in the order.
              “Mr. Pech: Well, but is that in the order—
              “The Court: Yes.
              “Mr. Pech: —it only go[es] to Mr. Glowacki? But obviously Mr. Garrett
wants to see those because that’s what he just said.
              “The Court: I have ordered it only goes to Mr. Glowacki at this time. I
will order that for Monday.
              “Mr. McDermott [Nancy’s counsel]: We do not want to see them at this
time so I made clear that—
              “The Court: So when can you have those available?
              “Mr. Pech: When I get the order, your Honor.
              “The Court: We’re giving you the minute order today, counsel.
              “Mr. Pech: That’s fine.
              “The Court: When can you have that available?

                                               6
             “Mr. Pech: I would say that I can go ahead and organize things in terms of
like maybe a week from July 4th, something of that sort, the week of—week of the 10th.
             “The Court: All right. Monday the 10th.
             “Mr. Pech: How about the 12th?
             “The Court: Two weeks from today, everything will be turned over.
             “Mr. McDermott: When you say ‘everything,’ you’re talking about the
invoices, not the production of the entities’ documents?
             “The Court: I’m talking about everything in the minute order that I made
on Monday.
             “Mr. McDermott: Okay.
             “The Court: That’s all the invoices from his office, yes. [¶] . . . [¶]
             “The Court: Mr. Pech—
             “Mr. Pech: Yes.
             “The Court: —we have ordered and you’ve agreed that all of your
documents will be provided by July 12th—
             “Mr. Pech: That’s correct, your Honor.”
             Following the hearing, the trial court entered a minute order that reads, in
relevant part: “The Court further orders attorney Richard Pech [Thomas’s attorney] to
provide all documents indicated in the 6/26/2017 minute order of this court to attorney
John Glowacki [the Hitchmans’ attorney] on or before 7/12/2017. The Court clarifies the
6/26/2017 minute order of the documents to be provided are invoices, billings, fee
agreements, copies of checks and wire transfers used to pay any attorney fees and costs.”
             The Hitchmans’ counsel submitted a proposed formal order, which
mirrored the trial court’s minute order. Thomas filed objections to the proposed order; as
to the invoices, billing statements, fee agreements, and documents evidencing payment
for attorney fees, Thomas objected on the grounds (1) the order was contrary to the law,
citing Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 209 (Wells Fargo) and

                                             7
Fiduciary Trust Internat. of California v. Klein (2017) 9 Cal.App.5th 1184, 1197
(Fiduciary Trust), and (2) “there is no jurisdictional basis for this part of the Proposed
Order.”
              The trial court entered its formal order, impliedly overruling Thomas’s
objections, and reading in relevant part: “The Suspended Trustee shall comply with the
April 4, 2017, Order by transferring and delivering to the Interim Co-Trustees, no later
than July 12, 2017, all original, unredacted attorney invoices, billing statements, fee
agreements, and checks/wire transfers for payments for all attorney’s fees and costs
incurred and/or paid by the Suspended Trustee and paid or payable to any attorney;
however, the Interim Co-Trustees shall not distribute these materials to Nancy Morgan,
John Morgan, Kathleen Shurtleff, Jessica Shurtleff, or their respective counsel.” The
court also set a hearing on an order to show cause for contempt against Pech and Thomas
for their refusal to obey the court’s order after Pech affirmatively stated on the record that
he would do so.

              E. Thomas Refuses to Comply and Files a Petition in the Appellate
              Court Challenging the Trial Court’s Order.
              Thomas filed a petition for a writ of mandate and/or prohibition in this
court from the formal order, as well as the minute order, on the ground that the orders
improperly require him to turn over documents protected by the attorney-client privilege.


                                         DISCUSSION
              A. Trust Law
              When a trustee seeks legal advice on behalf of a trust, the trustee is the
client and has the right to assert or waive the attorney-client privilege. The privilege
vests in the office of the trustee, not in a particular person. Therefore, the right to assert
the privilege is transferred from a trustee to his or her successor trustee. (Moeller v.
Superior Court (1997) 16 Cal.4th 1124, 1130-1131.)


                                               8
              With respect to the trustee’s liability, the Probate Code provides that while
the settlor may, through the trust’s language, relieve the trustee of liability for breach of
trust, the trustee may not be relieved of liability for intentional misconduct, gross
negligence, or reckless indifference. “(a) Except as provided in subdivision (b), (c), or
(d), the trustee can be relieved of liability for breach of trust by provisions in the trust
instrument. [¶] (b) A provision in the trust instrument is not effective to relieve the
trustee of liability (1) for breach of trust committed intentionally, with gross negligence,
in bad faith, or with reckless indifference to the interest of the beneficiary, or (2) for any
profit that the trustee derives from a breach of trust.” (Prob. Code, § 16461, subds. (a) &
(b).)
              The Restatement of Trusts also provides that a trust may not relieve a
trustee of liability for intentional malfeasance: “Occasionally the terms of a trust provide
that the trustee shall have no accountability for his or her conduct in the administration of
the trust. Assuming that the settlor intended to create a trust relationship, however, this
does not preclude the beneficiaries from holding the trustee liable for a breach of trust or
otherwise accountable for the trust property and its administration. A trust provision of
this type may be interpreted as having the same effect as an exculpatory clause, and thus
as being subject to the same limitations.” (Rest.3d Trusts, § 83, com. d, pp. 206-207.)
              Further, “[n]otwithstanding the breadth of language in a trust provision
relieving a trustee from liability for breach of trust, for reasons of policy trust fiduciary
law imposes limitations on the types and degree of misconduct for which the trustee can
be excused from liability. Hence, an exculpatory clause cannot excuse a trustee for a
breach of trust committed in bad faith. Nor can the trustee be excused for a breach
committed with indifference to the interests of the beneficiaries or to the terms and
purposes of the trust—that is, committed without reasonable effort to understand and
conform to applicable fiduciary duties. In some situations, courts have, not
inappropriately, sought to distinguish between simple and gross negligence, while

                                               9
authorities in analogous contexts have emphasized fiduciaries’ sustained inattention to
their duty of care.” (Id., § 96, com. c, pp. 29-30.) And again: “It is contrary to sound
policy, and a contradiction in terms, to permit the settlor to relieve a trustee of all
accountability. . . . Even under the broadest grant of fiduciary discretion, a trustee must
act honestly and (as cases have sometimes quoted from prior Restatements) ‘in a state of
mind contemplated by the settlor.’ What this means is that courts will intervene to
prevent trustees from acting in bad faith, or without regard to the terms and purposes of
the trust or the interests of its beneficiaries, or for some purpose or motive other than the
accomplishment of the purposes of the discretionary power. Except to the extent the
power is for the personal benefit of a beneficiary-trustee, the court may also be called
upon to prevent the trustee from failing to act, whether capriciously, arbitrarily, or from a
misunderstanding of the trustee’s powers or duties.” (Id., § 87, com. d, p. 246.)
              B. The Beverly C. Morgan Trust
              In this case, the language of the Trust is consistent with the Probate Code
and the Restatement to the extent the Trust shows Beverly’s intent not to absolve Thomas
of liability for intentional misconduct, gross negligence, or acts taken in bad faith or with
reckless indifference to the interests of the Trust’s beneficiaries. By way of example:
              1. The Trust’s grant of the right of reimbursement and indemnification to
the trustee provides: “[A] Trustee shall not be indemnified or reimbursed with respect to
any expense, loss, damage, or claim incurred by reason of any breaches of trust, by acts
or omissions, committed intentionally, with gross negligence, in bad faith, or with
reckless indifference to the interests of the beneficiaries.”
              2. The portion of the Trust authorizing acts by the trustee that would
otherwise be conflicts of interest provides: “This limitation on the duties of loyalty, to
avoid conflicts of interest and not to undertake an adverse trust relationship shall not
apply in the event of willful neglect, willful misconduct or bad faith.”



                                              10
              3. The limitation on the trustee’s personal liability for good faith efforts in
administering the Trust provides: “Notwithstanding the foregoing, a Trustee shall be
personally liable for his or her breach of trust by acts or omissions, committed
intentionally, with gross negligence, in bad faith, or with reckless indifference to the
interests of the beneficiaries, and as to any profit that the Trustee derives from any breach
of trust.”
              If the Trust purported to absolve Thomas of any liability as successor
trustee, we would have to interpret that provision as void as it would be in contravention
of clear public policy and contrary to the language of the Trust. (See Tunstall v. Wells
(2006) 144 Cal.App.4th 554, 564 [before a court may invalidate a trust instrument based
on conflict with public policy, that public policy must be “sufficiently clear”].) But what
if the Trust’s terms permit Thomas to prevent a successor trustee from obtaining the
documents by which they might establish Thomas’s malfeasance, bad faith, or intentional
misconduct? Are Trust provisions that may, in effect, absolve Thomas from liability also
void because they are in contravention of public policy or contrary to the terms of the
Trust?
              Paragraph 10.11 of the Trust, which is the focus of this matter, reads, in
full, as follows: “10.11 Consultation with Legal Counsel. The Trustee may retain and
consult with legal counsel on any matters related to the administration of the trusts
created under this Declaration of Trust or the construction or interpretation of this
Declaration of Trust, and I encourage the Trustee to do so. The Trustee may select the
legal counsel to advise or represent him or her, and the Trustee is expressly authorized to
pay the fees and costs of the legal counsel from the trust estate. The time, place, subject
matter, and content of any such consultation with legal counsel, all communication
(written or oral) between the Trustee and legal counsel, and all work product of legal
counsel shall be privileged and confidential and shall be absolutely protected and free
from any duty or right of disclosure to any successor Trustee or any beneficiary and any

                                             11
duty to account. The Trustee shall, however, include the amount of any disbursement for
the legal counsel fees and costs in any report or account prepared by the Trustee for the
period during which the expenses were paid.” (Italics added.)
              Based on the foregoing analysis of the Trust’s terms and the relevant law
on the subject, we conclude the portion of paragraph 10.11 that provides that a trustee is
“free from any duty or right of disclosure to any successor Trustee” violates public policy
as expressed by statute, and is therefore void.

              C. Case Law Regarding Communications between the Trustee and the
              Trust’s Legal Counsel
              The cases Thomas cites in support of his petition actually support our
analysis and holding. In Fiduciary Trust, supra, 9 Cal.App.5th at page 1192, the interim
successor trustee demanded all communications between the suspended and removed
trustees and their legal counsel that had been paid for with trust funds. The appellate
court concluded “a former trustee is required to turn over all communications, including
privileged communications, in the trust’s legal files unless they can demonstrate that they
retained the counsel with whom they communicated in a personal capacity and took
affirmative steps to distinguish the purported personal advice from advice obtained in a
fiduciary capacity.” (Id. at pp. 1197-1198.)
              The appellate court concluded its holding was compelled by the Supreme
Court’s holding in Moeller v. Superior Court, supra, 16 Cal.4th 1124: “Moeller requires
a trustee to take certain affirmative steps to preserve its right to rely upon the
attorney-client privilege as the basis for withholding from the successor trustee
confidential documents maintained in the trust’s legal files. Moeller explains these
affirmative steps as follows: ‘[T]he successor trustee inherits the power to assert the
privilege only as to those confidential communications that occurred when the
predecessor, in its fiduciary capacity, sought the attorney’s advice for guidance in
administering the trust. If a predecessor trustee seeks legal advice in its personal


                                               12
capacity out of a genuine concern for possible future charges of breach of fiduciary duty,
the predecessor may be able to avoid disclosing the advice to a successor trustee by
hiring a separate lawyer and paying for the advice out of its personal funds. . . . [¶] We
recognize that the distinction between these two types of confidential trustee-attorney
communications—administrative, on the one hand, and defensive, on the other—may not
always be clear. Yet to require a trustee to distinguish, scrupulously and painstakingly,
his or her own interests from those of the beneficiaries is entirely consistent with the
purpose of a trust. Moreover, a trustee can mitigate or avoid the problem by retaining
and paying out of his or her own funds separate counsel for legal advice that is personal
in nature.’” (Fiduciary Trust, supra, 9 Cal.App.5th at p. 1199.)
               If Thomas did not distinguish his interests from the interests of the
beneficiaries of the Trust and instead used the Trust’s assets for his own benefit, the
documents and other communications relevant to those actions cannot be protected by
paragraph 10.11 of the Trust. There is no contention in this case that Thomas retained
separate counsel for advice regarding his separate interests or took any other action in
that regard.
               In Wells Fargo Bank, supra, 22 Cal.4th at page 205, the beneficiaries of a
trust requested documents from the trustee, Wells Fargo, related to the trust. While Wells
Fargo produced documents relating to trust administration, it asserted the attorney-client
privilege as to “documents reflecting communications with its attorneys about the
[beneficiaries’] claims of misconduct.” (Ibid.) The Supreme Court concluded that
Probate Code section 16060’s requirement that a trustee “‘keep the beneficiaries of the
trust reasonably informed of the trust and its administration’” did not require the trustee
to provide privileged documents to the beneficiaries. (Wells Fargo Bank, supra, at
p. 207.) The court found that the Supreme Court’s opinion in Moeller v. Superior Court,
supra, 16 Cal.4th 1124, did not require production of the privileged documents to the
beneficiaries, as that case only held that a successor trustee generally assumes the power

                                              13
to assert the attorney-client privilege as to communications between the predecessor
trustee and an attorney representing him or her. (Wells Fargo Bank, supra, 22 Cal.4th at
p. 209.) The challenged order in the present case required Thomas to turn over to the
interim co-trustees communications between Thomas as trustee and counsel for Thomas
as trustee. The orders specified the communications were not to be provided to the
beneficiaries—the Shurtleffs.
               Thomas also cites comment a to Restatement Second of Trusts, section 196,
in support of his argument. That section provides: “The powers conferred upon a trustee
can properly be exercised by his successors, unless it is otherwise provided by the terms
of the trust.” This rule is continued in Restatement Third of Trusts, section 85(2):
“Except as otherwise provided by the terms of the trust, the powers of a trustee . . . pass
to and are exercisable by substitute or successor trustees.” But the Third Restatement
specifically restricts the ability of trustors to limit the trustees’ liability for breach of trust:
“A provision in the terms of a trust that relieves a trustee of liability for breach of trust,
and that was not included in the instrument as a result of the trustee’s abuse of a fiduciary
or confidential relationship, is enforceable except to the extent that it purports to relieve
the trustee [¶] (a) of liability for a breach of trust committed in bad faith or with
indifference to the fiduciary duties of the trustee, the terms or purposes of the trust, or the
interests of the beneficiaries, or [¶] (b) of accountability for profits derived from a breach
of trust.” (Rest.3d Trusts, § 96(1).)
               D. Conclusion
               “In short, it comes down to the question, what was the intent of the testator
as to this matter? His intention, if in accordance with the law, is the all controlling factor.
What he intended is to be gathered from a consideration of the whole instrument creating
the trust, the nature and object of the trust and all other circumstances which have a
bearing on the question.” (In re Boutwell’s Estate (Vt. 1941) 22 A.2d 157, 159, italics
added, citing Rest.2d Trusts, § 196.)

                                                14
              Consistent with public policy, Beverly drafted the Trust to protect the
beneficiaries from malfeasance on the part of a trustee. Both in order to prevent such
malfeasance and to maintain the effective and consistent operation of the Trust,
paragraph 10.11 must be interpreted in a manner that does not permit Thomas to withhold
from the Hitchmans—or any other interim or successor trustee—materials covered by the
attorney-client privilege and which reflect Thomas’s communications with the Trust’s
legal counsel while he was serving as trustee. As we have explained, there is no
contention in this case that Thomas, as trustee, distinguished his own interests from those
of the beneficiaries or retained separate counsel for this purpose.


                                         DISPOSITION
              The petition for a writ of mandate is denied. Real parties in interest to
recover costs in this writ proceeding.




                                                  FYBEL, J.

WE CONCUR:



MOORE, ACTING P. J.



THOMPSON, J.




                                             15
