Filed 12/1/15 In the Matter of the Andersen Family Trust CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


In the Matter of the ANDERSEN FAMILY                                 B255546
TRUST.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. BP099392)


STEPHEN ANDERSEN et al.,

         Petitioners and Respondents,

         v.

PAULINE HUNT,

         Appellant.


         APPEAL from orders of the Superior Court of Los Angeles County, David J.
Cowan, Judge. Affirmed.
         Law Offices of Richard Pech, Richard Pech; Law Offices of Marc B. Hankin,
Marc B. Hankin for Appellant.
         Law Offices of John A. Belcher, John A. Belcher for Petitioners and Respondents.
       Wayne Andersen died on April 28, 2006. Since that time, his children, Stephen
Andersen and Kathleen Brandt, have been engaged in a protracted legal battle with his
long-term romantic partner, Pauline Hunt, and her grandson, Taylor Profita, over the
disposition of assets held by the Andersen Family Trust (the trust) that Wayne1 and his
deceased wife Harriett Andersen2 established in 1992.
       These consolidated appeals are the product of two skirmishes concerning the
trust’s no contest clause, which the parties largely ignored for the first seven years of this
litigation. Pauline actively invoked the no contest clause for the first time in 2013, when
she filed a petition contending that the clause should be enforced against petitions
Stephen and Kathleen filed in 2006 and 2007. After the probate court denied Pauline’s
petition to enforce the clause in 2014, Stephen and Kathleen responded with their own
petition to enforce the clause against a petition for reformation Pauline filed in 2007. The
probate court denied their petition as well. Both sides timely appealed the denials of their
respective petitions, and we consolidated the related disputes for disposition.
       We affirm. With respect to Pauline’s petition to enforce the no contest clause
against Stephen and Kathleen (Pauline’s appeal), we conclude that the petitions Stephen
and Kathleen filed were indirect contests that did not trigger the no contest clause under
the current version of the Probate Code, which we find applicable. We further conclude
that the petitions did not constitute prohibited contests under the older version of the
Probate Code that Pauline seeks to apply. With respect to Stephen and Kathleen’s
petition to enforce the no contest clause against Pauline (Stephen and Kathleen’s appeal),
we conclude that most of their contentions are barred by principles of finality and


       1
       We refer to the parties by their first names for clarity. No disrespect is intended.
       2
       Documents in the record variously spell the name of Wayne’s wife as “Harriett”
and “Harriet.” When quoting from the record, we have left the spellings of the name
unchanged.




                                              2
appellate review. Additionally, we conclude that the challenged petition filed by Pauline
did not constitute a contest under the current or former versions of the Probate Code.
             FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       Nine years of continuous and contentious litigation between the parties (including
two previous appeals and a writ proceeding before this court) have left in their wake a
lengthy and complicated factual and procedural history. We discuss only the portions of
that history most pertinent to the instant disputes.
I.     The Andersen Family Trust
       Wayne and Harriett settled the trust as co-trustors and co-trustees in 1992. They
were the sole trust beneficiaries during their lives. The trust designated Stephen and
Kathleen as trustees upon the incapacitation or death of both Wayne and Harriett. It also
provided that Stephen and Kathleen were to receive the trust assets in equal shares upon
the death of both Wayne and Harriett.
       The trust contained the following provisions relevant here:
       “ 3.1 On the death of either Trustor survived by the other Trustor, the trustee shall
divide the trust estate (including any additions made by the Will of the deceased trustor
or by any life insurance or employee benefit proceeds or otherwise) into two shares,
designated Trust A and Trust B, each of which shall constitute and be held, administered
and distributed by the trustee as a separate trust.
       “3.2 CONTENTS OF TRUST A (Survivor’s Trust): Trust A shall consist of the
following:
       “The minimum pecuniary amount necessary to entirely eliminate, or to reduce to
the maximum extent possible, any federal estate tax at the deceased trustor’s death. In
making this determination, the trustee shall take into consideration all federal estate tax
deductions and all federal estate tax credits other than those for state death taxes.
       “This allocation to Trust A shall be satisfied in cash or kind, or partly in each, only
with assets eligible for the marital deduction. Assets allocated in kind shall be deemed to



                                               3
satisfy this amount on the basis of their values as finally determined for federal estate tax
purposes.
       “The Trustee shall not allocate to Trust A assets having an aggregate fair market
value at the date of allocation that is less than the marital deduction amount as finally
determined for federal estate tax purposes.
       “3.3 CONTENTS OF TRUST B (Deceased Spouse’s Tax Credit Trust):
       “Trust B shall consist of the balance of the trust estate plus any amount disclaimed
on behalf of the surviving spouse.”
       “3.7 DISTRIBUTION OF INCOME AND PRINCIPAL OF TRUST B
       “Any payment of the deceased trustor’s debts and all administrative costs
associated with the death of the deceased trustor shall be paid from the income and
principal of Trust B.”
       “4.1 POWER TO AMEND: During the joint lifetime of Trustors, this Trust may
be amended in whole or in part by an instrument in writing, signed by both Trustors, and
delivered to the Trustee. After the death of the first Trustor to die, the surviving Trustor
may amend Trust A, in whole or in part, by an instrument in writing, signed by the
Trustor and delivered to the Trustee. After the death of the first Trustor to die, Trust B
may not be amended by the surviving Trustor.
       “4.2 POWER TO REVOKE: During the joint lifetime of the Trustors, the
Trustors may revoke the Trust with regard to the community property of the Trustors by
an instrument in writing, signed by both Trustors jointly or by either Trustor alone. Upon
revocation, the Trustee shall deliver the trust property or the revoked portion of the trust
property to both of the Trustors as the community property of both Trustors.
       “After the death of the first Trustor to die, the surviving Trustor may revoke Trust
A, in whole or in part, by an instrument in writing, signed by the Trustor and delivered to
the Trustee. After the death of the first Trustor to die, Trust B may not be revoked by the
surviving Trustor.”



                                              4
       The trust also contained a no contest clause. That clause, contained in paragraph
7.3, provided:
       “In the event any beneficiary under this Trust shall, singly or in conjunction with
any other person or persons, contest in any court the validity of this Trust, or of the
provisions of the deceased Trustor’s Last Will and Testament pertaining to this Trust, or
shall seek to obtain an adjudication in any proceeding in any court, that this Trust, or any
of its provisions, or that such Will or any of its provisions, is void, or seek otherwise to
void, nullify or set aside this Trust, or any of its provisions, then the right of that person
to take any interest given to him or her by this Trust shall be determined as it would have
been determined had the person predeceased the execution of this Declaration of Trust.
The Trustee is hereby authorized to defend, at the expense of the Trust Estate, any contest
or other attack of any nature on this Trust or any of its provisions.”
       Harriett died on November 26, 1993. Wayne did not divide the trust assets into
separate A and B trusts upon her death or at any time thereafter.
II.    The Trust Amendments
       Wayne amended the trust five times after Harriett’s death. The first amendment,
dated October 17, 1996, designated Pauline as the successor trustee upon Wayne’s
incapacitation or death. Stephen and Kathleen were to succeed her as co-trustees.
       Wayne suffered a stroke on May 11, 2003. Seventeen days later, on May 28,
2003, Wayne executed a second amendment to the trust. This amendment provided:
“This Addenda to the Andersen Family Trust is made for the following purpose: [¶]
Trustor does hereby change the distribution of the trust assets upon his death as follows:
[¶] 60% of the residue of the trust estate shall be distributed to Pauline S. Hunt, a very
dear friend of trustor. [¶] The remaining 40% of the residue of the trust estate shall be
distributed in three equal shares, one for Stephen E. Andersen, Kathleen L. Brandt, and
John Andersen, trustor’s children and grandson. [¶] Trustee does state that when the
trust originated it was an AB trust. Trustor states there are no assets in decedent’s Trust
B, and that all assets are in trustor’s Survivor’s Trust, Trust A. Trust B was never funded

                                               5
and it is the intent of the trustor and was the intent of the trustors prior to the demise of
Harriet Andersen, that upon the death of the first trustor, the surviving trustor had the
right to place assets in trust B if said surviving trustor wanted to, in order to save taxes
and that trust B was only for a tax credit trust. The above distribution is to be made from
the entire assets of the Andersen Family Trust. [¶] Except as so amended, Trustor re-
affirms the Living Trust and any Addendas made thereto.”
       Wayne amended the trust a third time on November 18, 2003. In this amendment,
Wayne restated that Pauline was to succeed him as trustee “upon his demise.” “[S]hould
she be deceased, or unable to act, then Sunny Charla Asch shall act as such successor
trustee, and should Sunny be unable to act, then Noella Ballenger, shall act as such
trustee.” This amendment thus removed Stephen and Kathleen as successor trustees. It
also provided that “none of trustor’s children or grandson have any involvement with the
handling of said trust assets. Further the trustee is directed to sell the residence and in no
way shall trustor’s son, Stephen[,] or his daughter, Kathleen[,] or his grandson, John, be
allowed to purchase the residence, either directly or indirectly.” The amendment restated
the 60-40 asset allocation between Pauline and Stephen, Kathleen, and John set forth in
the previous amendment. It further added Pauline’s grandson Taylor as a beneficiary if
Pauline predeceased Wayne: “Should Pauline Hunt predecease testator, then the trust
assets shall be distributed as follows: [¶] Twenty-five percent (25%) to Taylor Profita,
of the residue of the trust assets[;] [¶] Seventy-five percent (75%) of the residue of the
trust assets shall be distributed to Stephen E. Andersen, Kathleen L. Brandt and John
Andersen to share and share alike. [¶] Should Taylor predecease testator, then the entire
residue of the trust assets shall go to Stephen, Kathleen and John to share equally. If any
of these three are deceased, such share or shares shall go to the survivors remaining.”
        The fourth amendment, dated January 24, 2004, was identical to the second
amendment. But it had handwritten crosshatching over the first four paragraphs
(concerning the 60-40 division of assets between Pauline and Wayne’s family), along
with a handwritten note stating, “Already superseded by amendment dated 11/18/03.”

                                               6
The remaining portion of the fourth amendment concerned the A and B trusts and
provided, as the second amendment did, that “Trustee does state that when the trust
originated it was an AB trust. Trustor states there are no assets in decedent’s Trust B,
and that all assets are in trustor’s Survivor’s Trust, Trust A. Trust B was never funded
and it is the intent of the trustor and was the intent of the trustors prior to the demise of
Harriet Andersen, that upon the death of the first trustor, the surviving trustor had the
right to place assets in trust B if said surviving trustor wanted to, in order to save taxes
and that trust B was only for a tax credit trust. The above distribution is to be made from
the entire assets of the Andersen Family Trust. [¶] Except as so amended, Trustor re-
affirms the Living Trust and any Addendas made thereto.” Wayne also added a
handwritten notation to the trust document: “Resigned this 24th day of January 2004 – to
make this an original.”
        Wayne made the fifth and final amendment to the trust on July 6, 2004.3 That
amendment provided: “This Addenda is made for the following purpose: [¶] Trustor
deletes his grandson from receiving a part of the assets of the trust, and instead, the
percentage going to trustor’s son, daughter and grandson, shall now only go to trustor’s
son and daughter, so Steve will have the portion that had been set aside for his son. [¶]
Except as so amended, trustor re-affirms his Living Trust and any amendments thereto.”
III.    Wayne’s Death and Ensuing Litigation
        Wayne suffered a second major stroke on February 7, 2006. He died on April 28,
2006.




        3
         On May 19, 2005, in the presence of attorney Jeffers, Wayne executed a
declaration reaffirming the trust and amendments thereto. The declaration also stated that
“The understanding we had as to that trust is that a decedent’s trust would only be set up
in the event it was necessary for estate tax purposes. Since there was no need for this
particular purpose, all assets of the Trust are in the survivor’s trust, being myself, and I
have the right and have made changes in the testamentary plan which I intend that my
successor trustee carry out.”
                                               7
       A.     Petitions Filed by Stephen and Kathleen
       On July 11, 2006, Stephen and Kathleen initiated the instant litigation by filing a
document entitled “Petition for Recovery of Trust Property and Accounting; Petition to
Enforce Written Trust in Real Property; Petition to Impose Constructive Trust Upon
Funds Diverted from Irrevocable Trust” pursuant to Probate Code section 17200.4 In
their petition, Stephen and Kathleen alleged that Wayne violated his fiduciary duty by
“convert[ing] to his own use and control assets which should have been held in trust for
Petitioners Stephen Andersen and Kathleen Brandt under the ‘B’ trust provisions.” They
further alleged that the trust became irrevocable upon Harriett’s death in 1993 and that
the January 24, 2004 amendment could not modify Wayne’s obligation to fund the B
trust and accordingly was null and void. They sought damages for conversion and breach
of fiduciary duty, the imposition of a constructive trust on Harriett’s interest in the family
home, and an accounting.
       Stephen and Kathleen subsequently amended their petition three times. All three
amended petitions retained the allegations and causes of action asserted in the first
petition. The second and third amended petitions added causes of action for elder neglect
and financial elder abuse against Pauline and Taylor, as well as a cause of action for
breach of fiduciary duty against Pauline in her capacity as trustee. The third amended
petition, filed on October 8, 2007, became the operative petition for purposes of trial. In
addition to the allegations and claims contained in the previous versions, the third
amended petition sought a declaration that “the entirety of the estate of Wayne Andersen,
pursuant to his will, became property of ‘Trust B’ and held in Trust for the two identified
beneficiaries, Kathleen Brandt and Stephen Andersen.” In the alternative, Stephen and
Kathleen’s third amended petition asked the court to declare that “subsequent written
actions of Wayne Andersen reaffirmed his intention to keep the Andersen Family Trust . .
. in its original form as executed by Harriett Andersen and Wayne Andersen,” and “that


       4
        All further statutory references are to the Probate Code unless otherwise
indicated.
                                              8
any purported amendments to the Trust are null and void as products of undue influence,
of a lack of testamentary capacity and of financial elder abuse[.]”
       B.     Petition Filed by Pauline
        A few days after Stephen and Kathleen filed their third amended petition, Pauline,
in her capacity as trustee, filed a section 17200 petition seeking construction of the trust,
determination of the validity of the amendments, and reformation of paragraph 3.2 of the
trust (“CONTENTS OF TRUST A (Survivor’s Trust)”). Pauline alleged that when
Wayne and Harriett settled the trust, they “intended that they would have control over
their assets during the lifetime of both spouses and that the surviving spouse would have
control after the death of the first spouse to die, and that the surviving spouse would have
the option to disclaim assets into a credit shelter trust after the death of the first spouse to
die if conditions warranted the establishment of a credit shelter trust (Trust B) at that time
in the surviving spouse’s discretion.” In support of this contention, Pauline attached a
copy of a “script” that the trust drafter, attorney Eva Jeffers, read to Wayne and Harriett
before they executed the trust. The script stated in pertinent part that “If there is no need
for any tax advantage then there will be no Trust B. . . .” [¶] “The surviving spouse has
full control over all assets of the trust and makes the election of Trust A and Trust B upon
the death of the first spouse as said surviving spouse shall determine in said spouse’s
absolute discretion.”
       Pauline also sought to reform paragraph 3.2 of the trust to reflect the alleged intent
of Wayne and Harriett. She proposed two revisions, the first of which added language to
the existing version of paragraph 3.2 and the second of which entirely replaced the
existing version of paragraph 3.2.
       C.     The Trial
       The probate court bifurcated for trial the issues presented in the dueling petitions.
The phase I trial addressed construction, interpretation, and reformation of the trust; the
phase II trial addressed the claims of lack of capacity, undue influence, and elder abuse,
as well as a motion Stephen and Kathleen made to remove Pauline as trustee.

                                               9
              1.      Phase I
       The probate court tried the phase I issues over nine days from October 2007 to
March 2008. The court issued a written statement of decision regarding phase I on July
29, 2008. In that statement of decision, the court rejected Stephen and Kathleen’s claims
that Wayne and Harriett intended the trust to be irrevocable upon Harriett’s death. The
court found that “Wayne’s original intent and understanding in executing the Trust was
that the survivor have the option to fund Trust B.” The court further found that the
conduct of Wayne and attorney Jeffers in the years following Harriett’s death “was
consistent with their understanding that Wayne had no obligation to fund Trust B and was
free to continue to treat the Trust as a modifiable, revocable Trust,” and that such conduct
“was consistent with the intent and meaning of the Trust.” The court made “these
determinations and interpretations of the Trust instrument having found that there exist
numerous patent and latent ambiguities in the instrument.” Citing its difficulty
reconciling the language of the trust, the parties’ conflicting interpretations of that
language, and the trial testimony of attorney Jeffers and another witness, the court
“concluded that the funding provisions for Trust A and Trust B are contradictory,
confused, indefinite, and ambiguous.”
       As to Pauline’s request for reformation, the probate court stated that it was
“inclined to reform the Trust to clarify the primary ambiguity with regard to the funding
of Trust B by adopting the proposed revision of section 3.2” set forth in Pauline’s
petition. The court nonetheless “decline[d] to issue a final judgment of reformation at
this time, deferring same pending conclusion of the Phase II trial.” The court ended its
statement of decision with a directive that the findings and orders contained therein “shall
be law of the case pending conclusion of the Phase II trial and shall be incorporated in the
final judgment.”
              2.      Phase II
       Phase II of the trial occurred over several days in 2008. The court delivered an
oral tentative statement of decision on March 25, 2009. In that tentative statement, the

                                              10
court found that Wayne had the capacity to execute the final four trust amendments and
was not unduly influenced by Pauline when he did so. It also found, however, that
Wayne “‘lacked financial capacity since at least January 2004, and lacked the capacity to
understand or appreciate the significance or ramifications of placing personal assets in
joint tenancy accounts with Hunt’” and accordingly ruled that the establishment of
several joint bank accounts was void ab initio. The court removed Pauline as trustee on
April 15, 2009 and ordered a referee to prepare a supplemental accounting.
       The court issued a second, written tentative statement of decision on August 12,
2009. This statement of decision differed from the March oral tentative in important
ways. Notably, the court found that Wayne lacked the capacity both to make the final
four trust amendments and to convey financial assets to Pauline. The court found that
Wayne trusted and was dependent upon Pauline, who took unfair advantage of him but
did not physically neglect him.
       The court entered judgment in accordance with its August tentative on October 15,
2009. The court’s “declaratory judgment” noted that “the court filed a Phase I Statement
of Decision on July 29, 2008 finding that the subject trust remained modifiable following
the death of Wayne Andersen’s spouse, Harriet. The court declined to reform the trust
language; Hunt later stipulated to abandon the request for formal reformation of the trust
given the court’s findings in the Phase I Statement of Decision.” The court expressly
reiterated its phase I findings that “[t]here was no breach of fiduciary duty by Wayne
Andersen in failing to put the assets of Harriet Andersen in a separate B Trust,” and that
“[t]he claims and [sic] wrongdoing by Wayne Andersen in [Stephen and Kathleen’s] third
amended petition were not sustained by the evidence.” The court also found that the
“statutory elder abuse claims” against Pauline and Taylor were not sustained by the
evidence.
       D.     The Appeal
       Pauline timely appealed the October 15, 2009 judgment. She challenged the
court’s application of the contractual rather than testamentary standard of capacity, as

                                            11
well as its findings regarding Wayne’s capacity to amend the trust and her undue
influence in bringing about the amendments and asset transfers. She did not challenge
any of the court’s phase I findings, including those concerning the revocability of the
trust and the funding of the B trust. Stephen and Kathleen did not file a cross-appeal or
otherwise place the court’s phase I findings at issue.
       In the published portion of the lengthy opinion we issued on June 4, 2011, we
concluded that the probate court erred in evaluating Wayne’s capacity to execute the trust
amendments by the standard of contractual capacity rather than the standard of
testamentary capacity. (Andersen v. Hunt (2011) 196 Cal.App.4th 722, 726, 731.) In the
unpublished portion, we concluded that there was no substantial evidence that Wayne
lacked the requisite testamentary capacity when he amended the trust in 2003 and 2004.
We further concluded that there was no substantial evidence that the 2003 and 2004
amendments were the product of undue influence by Pauline. We accordingly concluded
that the 2003 and 2004 amendments were valid and directed the probate court to enter a
new and different judgment affirming the validity of the trust amendments. (Andersen v.
Hunt, supra, 196 Cal.App.4th at p. 732.) We affirmed the court’s ruling in all other
respects. (Id.)
       On remand, the probate court issued a judgment that the 2003 and 2004 trust
amendments were valid. That judgment was filed on May 2, 2012.
       E.     The Malicious Prosecution Suit
       In October 2011, after we issued our opinion and remittitur but before the probate
court entered its revised judgment, Pauline and Taylor filed a malicious prosecution suit
against Stephen, Kathleen, and their attorney, John A. Belcher. Pauline and Taylor
alleged that Stephen, Kathleen, and Belcher all acted without probable cause when
Belcher filed Stephen and Kathleen’s second amended petition claiming that Pauline and
Taylor engaged in elder neglect. Pauline and Taylor alleged that the proceedings on that
claim were terminated in their favor on October 15, 2009, when the probate court issued
its final judgment.

                                             12
       Belcher filed an anti-SLAPP motion to strike the complaint against him pursuant
to Code of Civil Procedure section 425.16.5 The court entered an order granting
Belcher’s anti-SLAPP motion on October 10, 2012. In that order, the court found that
Belcher’s conduct in filing claims against Pauline and Taylor on behalf of his clients
Stephen and Kathleen was protected conduct. In light of that finding, the court noted that
the burden shifted to Pauline and Taylor to demonstrate a probability of prevailing on the
claims. The court found that Pauline and Taylor failed to meet that burden because they
did not oppose Belcher’s anti-SLAPP motion.
       The court struck the complaint in its entirety as to Belcher, dismissed the claims
and action against him with prejudice, and indicated that he was entitled to attorney’s
fees and costs upon noticed motion. Belcher subsequently filed and noticed a motion for
attorney’s fees and costs, which the court granted. The court later dismissed the
malicious prosecution claims against Stephen and Kathleen without prejudice due to lack
of prosecution. Neither Pauline nor Taylor appealed.
       F.     The No Contest Clause Petitions
              1.     Petition Filed by Pauline
       In her 2007 petition, Pauline mentioned the trust’s no contest clause and stated that
it would “be the basis of a separate petition after judgment is entered in this case.”
Pauline eventually followed through with this promise by filing a petition to enforce the
no contest clause on July 22, 2013, more than a year after the court entered judgment on
remand, almost four years after the court entered judgment after trial, and approximately
seven years after the litigation began. She filed the operative first amended verified
petition on September 19, 2013. Pauline alleged that all four of the petitions Stephen and
Kathleen filed in 2006 and 2007 contained allegations that violated the no contest clause.6


       5
         SLAPP is an acronym for Strategic Lawsuit Against Public Participation.
       6
         Although former Probate Code section 21320, subdivision (a) permitted
beneficiaries to “apply to the court for a determination of whether a particular motion,
petition, or other act by the beneficiary . . . would be a contest within the terms of the no
contest clause,” none of the parties in this case took advantage of this “safe harbor”
                                                13
She claimed that Stephen and Kathleen attempted to “nullify and thwart the Trust
provisions concerning subtrusts and the power to amend, to violate the settlors’ estate
plan contained in the Trust, in addition to nullifying Wayne’s clearly stated intent to
Stephen and Kathleen (and his estate planning attorney, Jeffers) that he had exercised his
power to amend under the Trust by giving Pauline 60% of the trust assets upon his
death.” Pauline attached a chart summarizing thirteen allegations Stephen and Kathleen
made in all iterations of their petitions that in her view violated the no contest clause.
The challenged allegations pertain to the A and B trusts, the revocability of the trust, and
Wayne’s power to amend the trust.
       Stephen and Kathleen objected to Pauline’s petition, though notably not on laches
or other untimeliness grounds. They argued that their allegations were supported by
probable cause and, further, that “the existence of probable cause is res judicata” in light
of the resolution of the malicious prosecution suit, in which they claimed the court
“found that this action was filed with probable cause.” (They asked the court to take
judicial notice of the complaint and order granting Belcher his attorney’s fees in that
case. In the alternative, they argued that the “interim adverse judgment rule” also
operated to conclusively establish that their petitions were supported by probable cause.
In support of this argument, they pointed to the trial court’s rulings that Wayne lacked the
capacity to amend the trust and transfer assets, and that Pauline took unfair advantage of
Wayne and exercised undue influence over him. Stephen and Kathleen also argued that
the allegations contained in their petitions did not constitute a prohibited contest under




provision (Donkin v. Donkin (2013) 58 Cal.4th 412, 419 (Donkin)) before filing the
petitions now being challenged as violative of the no contest clause. We share the
incredulity expressed by the probate court regarding the parties’ failure to take advantage
of the safe harbor provision.
                                            14
the former Probate Code provisions in effect when they filed their petitions. 7 Pauline
disputed these arguments in a reply filing.
       The parties stipulated that Temporary Judge David J. Cowan could adjudicate the
dispute regarding Pauline’s no contest clause petition. Judge Cowan held a hearing on
December 13, 2013. After the hearing, Judge Cowan requested supplemental briefing on
Donkin v. Donkin, supra, 58 Cal.4th 412, which the Supreme Court decided after the
parties submitted the instant dispute. Both sides filed supplemental briefs addressing
Donkin.
       Judge Cowan issued a comprehensive 21-page ruling denying Pauline’s petition
on February 6, 2014. He analyzed the petition under both current Probate Code, sections
21310 and 21311, and former Probate Code sections 21300 and 21305. The current law
provides in pertinent part that “A no contest clause shall . . . be enforced against . . . [¶]
a direct contest that is brought without probable cause.” (§ 21311, subd. (a)(1).) Judge
Cowan concluded that Stephen and Kathleen did not bring a “direct contest” within the
meaning of section 21310, subdivision (b). Instead, he found that Stephen and Kathleen
“were only arguing indirectly that the Trust’s provisions . . . were not valid and should be
set aside.” Even if their allegations amounted to a direct contest, Judge Cowan reasoned,
Stephen and Kathleen did not violate the no contest clause because their allegations were
supported by “probable cause” as defined in section 21311, subdivision (b). In reaching
this conclusion, Judge Cowan observed that the plain language of the trust supported the
positions taken by Stephen and Kathleen. He further noted that the probate court that
tried the case concluded that the trust was ambiguous, which itself indicated it would be
reasonable for Stephen and Kathleen to advance the position asserted in their petitions.
       Judge Cowan also considered whether the former Probate Code should govern in
light of the “fairness exception” set forth in Probate Code section 3, subdivision (h) and


       7
       As discussed more fully below, the Legislature repealed Probate Code sections
21300-21308 and replaced them with Probate Code sections 21310-21315 during the
pendency of this litigation.
                                         15
discussed in Donkin, supra, 58 Cal.4th at pp. 416, 432-438. That exception applies
where “application of the former law would compel a different conclusion as to
enforceability of a no contest clause and it is established that the trustor(s) of the trust
instrument drafted the no contest clause in reliance on the former law.” (Donkin, supra,
58 Cal.4th at p. 416.) Judge Cowan concluded the fairness exception was not applicable
because the result would be the same under several of the public policy exceptions found
in former section 21305, subdivision (b).
       Pauline timely appealed on April 7, 2014.
              2.      Petition Filed by Stephen and Kathleen
       The same day Pauline filed her notice of appeal, Stephen and Kathleen filed a
petition seeking to enforce the no contest clause against her.8 They asserted that the
petition for reformation Pauline filed in 2007 violated the no contest clause under both
the current and former Probate Codes. Stephen and Kathleen did not analyze the current
Probate Code, however. Instead, invoking the fairness exception, they contended that
“application of the old law would compel a different conclusion as to enforceability of
the no contest clause because the reformation is an attack on how Trust A and Trust B
would be funded, it does not seek to interpret. Trust A was revokable [sic] and Trust B
was not revokable [sic]; Pauline’s reformation would invalidate the Trust as drafted. The
Trust manifestly and unambiguously demonstrates that neither Wayne nor Harriett
intended that the Trust be funded in the manner Pauline alleges in her reformation. Also,
it is without controversy that Wayne and Harriett prepared the Trust before the current
law was even contemplated, and that the Trust became irrevocable before the change in
the law and hence both elements [of the fairness exception] are satisfied.”

       8
         Approximately one week later, they also filed a verified petition to enforce
against Pauline a no contest clause contained in Wayne’s will. Although the probate
court denied this petition, and Stephen and Kathleen included the filings pertinent to this
petition in their clerk’s transcript, they make no mention of the petition in their briefing.
We accordingly do not consider whether the court properly denied the petition to enforce
the no contest clause contained in the will. (See, e.g., Estate of Sobol (2014) 225
Cal.App.4th 771, 783.)
                                              16
       Pauline objected. Just as Stephen and Kathleen ignored the delayed nature of
Pauline’s no contest clause petition, Pauline likewise ignored the lapse of time between
the filing of her petition seeking reformation in 2007 and Stephen and Kathleen’s petition
to challenge it in 2014. She instead argued that her request for reformation could not be a
contest because it was successful. In the alternative, she argued that her petition should
be governed by current section 21311 and was not a contest within the meaning of that
statute.
       In their reply, Stephen and Kathleen argued that the B trust became irrevocable
upon Harriett’s death in 1993 and that Wayne “ignored his duties, in effect giving himself
control over assets that needed division under the formula.” They further contended that
Pauline’s proposed amendment to paragraph 3.2 of the trust “sought to rewrite the
language of the original Andersen Family Trust” and “was inconsistent with both the
Trust and the amendments.”
       The parties stipulated that Temporary Judge Brenda Penny could adjudicate the no
contest clause petition. Judge Penny held a hearing on July 24, 2014. Both sides briefly
summarized the arguments they made in their written filings. Judge Penny indicated that
she understood the parties’ positions and took the matter under submission.
       On August 12, 2014, Judge Penny issued a minute order summarily denying the
petition. Her ruling, in its entirety, stated: “The Court has reviewed Petitioner Stephen
Andersen and Kathleen Brandt’s Petition to Enforce the No Contest Clause in the Trust
and Pauline Hunt’s Objections thereto. The Court has also reviewed the No Contest
Clause in the Trust. The court finds that the filing of Pauline Hunt’s Petition for
Construction of the Andersen Family Trust did not violate the No Contest Clause.”
       Stephen and Kathleen timely appealed on October 7, 2014.
                                      DISCUSSION
I.     Standard of Review
       The parties agree that the de novo standard of review applies. Where the
applicability of a no contest clause is at issue and there are no disputed facts, we perform

                                             17
a de novo review. (Bradley v. Gilbert (2009) 172 Cal.App.4th 1058, 1068; see also
Burch v. George (1994) 7 Cal.4th 246, 254 (Burch); In re Estate of Coplan (2004) 123
Cal.App.4th 1384, 1388.) We also perform a de novo review when interpreting the
Probate Code. (Jenkins v. Teegarden (2014) 230 Cal.App.4th 1128, 1138.)
II.     No Contest Clauses under Former and Current Probate Code Provisions
       A no contest clause in a will or trust instrument places conditions upon the gifts
and dispositions made in the instrument. (Burch, supra, 7 Cal.4th at p. 254.) These
conditions may be harsh: a no contest clause “essentially act[s] as a disinheritance device,
i.e, if a beneficiary contests or seeks to impair or invalidate the trust instrument or its
provisions, the beneficiary will be disinherited and thus may not take the gift or devise
provided under the instrument.” (Id. at p. 265; see also Donkin, supra, 58 Cal.4th at p.
422.) Despite their harshness, no contest clauses long have been held valid because they
promote the public policies of discouraging litigation and effectuating the intent of the
donor. (Donkin, supra, 58 Cal.4th at p. 422; Burch, supra, 7 Cal.4th at p. 254.) The
Legislature first codified common law principles governing no contest clauses in the
Probate Code in 1989 (Donkin, supra, 58 Cal.4th at p. 423), and it has continued to refine
and revise those statutes periodically (see id. at pp. 423-426).
       Crucial to this case are statutory changes the Legislature enacted during its
pendency. When this case was initiated in 2006, no contest clauses were governed by
former Probate Code sections 21300-21308 and 21320-21322. As is pertinent here, those
provisions distinguished between “direct contests” and “indirect contests” to testamentary
instruments. A “direct contest” was defined as “a pleading in a proceeding in any court
alleging the invalidity of an instrument or one or more of its terms based on one or more”
of 10 enumerated grounds. (Former § 21300, subd. (b).) An “indirect contest” was
defined as “a pleading in a proceeding in any court that indirectly challenges the validity
of an instrument or one or more of its terms based on any other ground not contained in
[former section 21300,] subdivision (b), and that does not contain any of those grounds.”
(Former § 21300, subd. (c).) The Supreme Court further clarified that “indirect” contests

                                              18
included those that “attack[ed] the validity of an instrument by seeking relief inconsistent
with its terms” (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 605) and sought to thwart
the distributive scheme established by the transferor (Johnson, supra, at p. 606; see also
Donkin, supra, 58 Cal.4th at p. 433).
       The former Probate Code generally permitted the enforcement of no contest
clauses against most direct and indirect contests. Former sections 21305 and 21306
contained some exceptions to this general rule, however. As is pertinent here, former
section 21305 prohibited the enforcement of no contest clauses against certain types of
indirect contests (former § 21305, subd. (e)) “as a matter of public policy” (former §
21305, subd. (b)). The “public policy exemption[]” (Donkin, supra, 58 Cal.4th at p. 424,
fn. 7) prohibited the enforcement of no contest clauses against indirect contests
“challenging the exercise of a fiduciary power” (former § 21305, subd. (b)(6)),
“regarding the interpretation of the instrument containing the no contest clause or an
instrument or other document expressly identified in the no contest clause” (former §
21305, subd. (b)(9)), and “regarding the reformation of an instrument to carry out the
intention of the person creating the instrument” (former § 21305, subd. (b)(11)).
       The Legislature repealed these provisions in 2008 and replaced them “with a new
set of statutes governing no contest clauses.” (Donkin, supra, 58 Cal.4th at p. 426.) The
new statutes, codified at current sections 21310-21315, differ substantially from their
predecessors. Current section 21310, subdivision (b) narrows the definition of “direct
contest” to include “a contest that alleges the invalidity of [an instrument containing a no
contest clause] or one or more of its terms, based on one or more” specified grounds.9
More importantly, section 21311, subdivision (a)(1) provides in pertinent part that “[a] no
contest clause shall only be enforced against . . . [¶] [a] direct contest that is brought
without probable cause.” Thus, under the provisions of the current law potentially

       9
         Pleadings alleging misrepresentation and mistake were considered direct contests
under the former Probate Code (former § 21300, subds. (b)(4), (b)(8)), but do not fall
within the definition of direct contest contained in the current Probate Code (see § 21310,
subd. (b)).
                                              19
relevant to this case, a no contest clause is not enforceable against a pleading unless the
pleading is a direct contest brought without probable cause. Contests that would have
been considered “indirect contests” under the former law cannot be barred by a no contest
clause under the current law. “Probable cause” exists for purposes of section 21311 “if,
at the time of filing a contest, the facts known to the contestant would cause a reasonable
person to believe that there is a reasonable likelihood that the requested relief will be
granted after an opportunity for further investigation or discovery.” (§ 21311, subd. (b).)
       The current law became effective on January 1, 2009 and operative on January 1,
2010. (Donkin, supra, 58 Cal.4th at p. 426.) The general rule for purposes of the Probate
Code is that “a new law applies on the operative date to all matters governed by the new
law, regardless of whether an event occurred or circumstance existed before, on, or after
the operative date, including, but not limited to, creation of a fiduciary relationship, death
of a person, commencement of a proceeding, making of an order, or taking of an action.”
(§ 3, subd. (c).)
       Additionally, by its terms, the current statutory scheme governing no contest
clauses “applies to any instrument, wherever executed, that became irrevocable on or
after January 1, 2001” (§ 21315, subd. (a)), and “does not apply to an instrument that
became irrevocable before January 1, 2001” (§ 21315, subd. (b)). The Supreme Court
nonetheless has recognized “that a party may be able to qualify for a fairness exception (§
3, subd. (h)) to the presumptive applicability of the current law to instruments that
became irrevocable after January 1, 2001, if application of the former law would compel
a different conclusion as to enforceability of a no contest clause and it is established that
the trustor(s) of the trust instrument drafted the no contest clause in reliance on the
former law.” (Donkin, supra, 58 Cal.4th at p. 416; see also id. at p. 433.)
III.   The Current Probate Code Applies
       In light of the revisions to the Probate Code, the date the trust became irrevocable
is the starting point for our analysis. This date governs which version of the Probate
Code applies. If the trust became irrevocable before January 1, 2001, the former Probate

                                              20
Code applies. (§ 21315, subd. (b).) If it became irrevocable on or after January 1, 2001,
the current Probate Code applies. (§ 21315, subd. (a).)
        In the response brief they filed in Pauline’s appeal, in which they defend Judge
Cowan’s ruling that their allegations did not violate the no contest clause, Stephen and
Kathleen contend that “Wayne Andersen died in April 2006, and at that point the trust
became irrevocable.” They take a different position in their own subsequent appeal,
however, arguing that the trust became irrevocable upon Harriett’s death in 1993.10
Pauline uniformly contends that the trust became irrevocable upon Wayne’s death in
2006.
        In 2008, after phase I of the bifurcated trial, the trial court determined that the trust
became irrevocable upon Wayne’s death in 2006. Specifically, it concluded that the trust
remained revocable after Harriett’s death and that Wayne did not breach any fiduciary
duties or engage in any actionable conduct by failing to put assets into a separate B trust.
Stephen and Kathleen did not appeal or cross-appeal those rulings.
        Pauline now takes the position that the trial court’s determination that the trust
became irrevocable in 2006 is “law of the case” and may not be relitigated at this
juncture.11 Although the circumstances of this procedurally unusual case do not satisfy
the requirements of the formal law of the case doctrine, we nonetheless conclude that


        10
           We agree with our colleagues in Division One that this tactic is not a
particularly effective one. In Giammarrusco v. Simon (2009) 171 Cal.App.4th 1586,
1601-1602, the court encountered a party who took one position in his appeal but the
opposite in a related appeal by his opponent. The court observed that the party “cannot
have it both ways . . . . In lay terms, what is good for the gander is good for the goose.”
        11
           Pauline did not make this argument below. However, Stephen and Kathleen
have not argued that the argument is forfeited or waived. Instead, they contend only that
“[h]aving injected the no contest issue into the case, Hunt is judicially estopped to claim
that the issue is not ripe for decision.” Stephen and Kathleen’s argument misses the mark
inasmuch as the issue is not one of ripeness but rather finality. Moreover, we have the
discretion to address theories presented for the first time on appeal when they present
legal questions determinable from uncontroverted facts (e.g., In re Marriage of Priem
(2013) 214 Cal.App.4th 505, 510-511), and we exercise that discretion in favor of doing
so here.
                                               21
general principles of finality effectively render the trial court’s determination that the
trust became irrevocable in 2006 “law of the case.” Like many courts before us, “we find
no merit in [a] present attempt to relitigate matters already decided and litigate issues
which could have been previously decided by this court had they been timely and
properly raised.” (Wilson v. Sharp (1959) 175 Cal.App.2d 691, 694.)
         The law of the case doctrine provides that “‘“where, upon an appeal, the
[reviewing] court, in deciding the appeal, states in its opinion a principle or rule of law
necessary to the decision, that principle or rule becomes the law of the case and must be
adhered to throughout its subsequent progress, both in the lower court and upon
subsequent appeal and . . . in any subsequent suit for the same cause of action, and this [is
true] although in its subsequent consideration this court may be clearly of the opinion that
the former decision is erroneous in that particular.”’ [Citation.]” (People v. Murtishaw
(2011) 51 Cal.4th 574, 589; see also 9 Witkin, Cal. Proc. (5th ed. 2008) Appeal, § 459, p.
515.) The doctrine promotes finality by preventing relitigation of issues previously
decided. (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 310.) Specifically, it
“prevents the parties from seeking appellate reconsideration of an already decided issue
in the same case absent some significant change in circumstances.” (People v. Whitt
(1990) 51 Cal.3d 620, 638.) It extends to questions that were implicitly determined
because they were essential to the previous decision, but does not apply to points of law
that might have been determined but were not decided in the prior appeal. (Sargon
Enterprises, Inc. v. University of Southern California (2013) 215 Cal.App.4th 1495,
1505.)
         The law of the case doctrine, while “not inflexible” (England v. Hospital of Good
Samaritan (1939) 14 Cal.2d 791, 795), is an imprecise fit for this case. In our previous
opinion, we noted the probate court’s conclusion that the trust became irrevocable in
2006 on Wayne’s death. But we did not independently consider or decide that issue. The
parties against whom the probate court ruled, Stephen and Kathleen, did not seek
appellate review. Moreover, the date the trust became irrevocable was not necessary to

                                              22
our previous ruling. Whether and when the trust became irrevocable had no bearing on
the issues Pauline presented to us, which did not implicate the revocability of the trust.
We accordingly conclude that the law of the case doctrine is not applicable here.
       General principles of finality and appellate review nonetheless preclude
relitigation of when the trust became irrevocable. In the previous appeal in this long-
running case, we reversed “[t]he part of the judgment invalidating the trust amendments,”
directed the probate court “to enter a new and different judgment affirming the validity of
the trust amendments,” and affirmed the probate court’s judgment “[i]n all other
respects.” (Andersen, supra, 196 Cal.App.4th at p. 732.) “A general or unqualified
affirmance ordinarily sustains the judgment and ends the litigation. The respondent can
enforce the judgment, the trial court cannot modify it, and further proceedings are
improper.” (9 Witkin, Cal. Proc. (5th ed. 2008) Appeal, § 853, p. 916.) Our general
affirmance of “all other respects” of the judgment aside from the portion concerning the
validity of the amendments necessarily included the trial court’s determinations that the
trust remained revocable and amendable upon Harriett’s death in 1993 and became
irrevocable only upon Wayne’s death in 2006. After the parties exhausted all avenues of
further appellate review, our opinion became final, our remittitur issued, and “the issues
adjudicated by the judgment were conclusively determined.” (Ayyad v. Sprint Spectrum,
L.P. (2012) 210 Cal.App.4th 851, 861.) We therefore reject Stephen and Kathleen’s
attempt to reopen the issue of when the trust became irrevocable. They are bound by the
previous determination that it became irrevocable upon Wayne’s death in 2006. Since
2006 is “on or after January 1, 2001” (§ 21315, subd. (a)), we conclude that the current
Probate Code provisions governing no contest clauses apply in this case, unless the
parties can show that an exception permits otherwise.
IV.    Pauline’s Appeal
       Pauline concedes that the allegations Stephen and Kathleen made in their petitions
filed back in 2006 and 2007 were indirect contests, which cannot trigger the enforcement
of the no contest clause under the current Probate Code. She accordingly argues that her

                                             23
petition to enforce the no contest clause against Stephen and Kathleen should be analyzed
under the former Probate Code, either because section 3, subdivision (e) requires
application of the former law, or because she is entitled to the fairness exception set forth
in section 3, subdivision (h). Stephen and Kathleen argue that their petitions were not
direct contests and, even if they were, are not subject to the no contest clause under
current section 21311, subdivision (a)(1) because they were supported by probable cause.
In the alternative, Stephen and Kathleen argue that their petitions also could not trigger
enforcement of the no contest clause under the former Probate Code. They also contend
that the final judgment in the malicious prosecution case “carries res judicata effect”
barring Pauline’s appeal. Although we reject their res judicata contention, we agree with
Stephen and Kathleen that the current Probate Code applies and that the no contest clause
therefore may not be enforced against their petitions.
       A.     The malicious prosecution suit is not res judicata.
       Stephen and Kathleen contend that the judgment in the malicious prosecution suit
– in favor of their attorney, John Belcher – “carries res judicata effect,” apparently
because Belcher was their agent. We disagree.
       “‘Res judicata’ describes the preclusive effect of a final judgment on the merits.
Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a
second suit between the same parties or parties in privity with them . . . . [Citation.]
Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged
into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the
defendant serves as a bar to further litigation of the same cause of action.” (Mycogen
Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897 [footnote omitted].) Here, even if
Belcher properly may be considered to be in privity with Stephen and Kathleen, who
were sued separately and obtained dismissal of the malicious prosecution suit on different
grounds, the cause of action asserted in that action (malicious prosecution) is not the
same as that asserted in Pauline’s petition at issue here (enforcement of no contest
clause). Moreover, as the probate court cogently explained, the court in the malicious

                                              24
prosecution case “was ruling . . . only on the claims of elder physical abuse or neglect,”
while “the claims in question [in this iteration of the probate proceedings] involve several
other claims.” Pauline’s appeal is not barred by res judicata.
       B.     Stephen and Kathleen did not bring a “direct contest” as defined by
the current law.
       Under current section 21310, a “contest” is a “pleading filed with the court by a
beneficiary that would result in a penalty under a no contest clause, if the no contest
clause is enforced.” (§ 21310, subd. (a).) We assume for purposes of these appeals, as
the parties do, that the petitions in question would result in a penalty under the trust’s
broadly worded no contest clause if the clause were enforced. A “direct contest” is “a
contest that alleges the invalidity of a protected instrument or one or more of its terms,
based on one or more of the following grounds: [¶] (1) Forgery. [¶] (2) Lack of due
execution. [¶] (3) Lack of capacity. [¶] (4) Menace, duress, fraud, or undue influence.
[¶] (5) Revocation of a will pursuant to Section 6120, revocation of a trust pursuant to
Section 15401, or revocation of an instrument other than a will or trust pursuant to the
procedure for revocation that is provided by statute or by the instrument. [¶] (6)
Disqualification of a beneficiary under Section 6112, 21350, or 21380.” (§ 21310, subd.
(b).) No contest clauses must be strictly construed (§ 21312) and, as is pertinent here, are
enforceable only against “[a] direct contest that is brought without probable cause” (§
21311, subd. (a)(1)).
       Pauline challenges the contentions Stephen and Kathleen made regarding Wayne’s
failure to create subtrusts and his allegedly impermissible amendments to the trust. She
concedes these are not direct contests, however, and we agree. Stephen and Kathleen did
not allege that the trust was invalid under any of the grounds listed in section 21310,
subdivision (a). (They did allege that Wayne lacked capacity to amend the trust and that
Pauline unduly influenced him to do so, but Pauline never has argued that those
allegations constituted a contest. And, as discussed below, those claims were supported
by probable cause.) Instead, they alleged Wayne breached the terms of the trust and his

                                              25
fiduciary duties and sought an accounting, the recovery of trust property that they
claimed Wayne impermissibly diverted, and the imposition of a constructive trust over
the allegedly diverted assets. The challenged allegations in their petitions were not direct
contests under the current law.
       C.     Even if the petitions were direct contests, they were supported by
probable cause.
       The probate court also determined that the petitions were supported by probable
cause. Pauline does not dispute this conclusion, although she contends it was
“superfluous” because she was not and is not seeking relief under the current Probate
Code. In our view, Judge Cowan’s decision to resolve this issue was not superfluous;
rather, it was prudent and thorough. Given the parties’ dispute over which law to apply,
Judge Cowan was wise to conduct a complete analysis.
       For purposes of enforcing a no contest clause under the current Probate Code,
“probable cause exists if, at the time of filing a contest, the facts known to a contestant
would cause a reasonable person to believe that there is a reasonable likelihood that the
requested relief will be granted after an opportunity for further investigation or
discovery.” (§ 21311, subd. (b).) Here, the language of the trust itself excerpted above
reasonably could be read to indicate that Wayne was obligated to create two subtrusts
upon Harriett’s death and lacked the power to revoke or amend at least one of the
substrusts. At worst, the language in these provisions was ambiguous, as the probate
court found after the phase I trial. Accordingly, Stephen and Kathleen reasonably could
have believed that their requested relief – an accounting, constructive trust, and return of
allegedly diverted assets – would be granted.
       D.     The former law is not applicable to Pauline’s petition.
              1.     Section 3, subdivision (e) does not require application of the
former law.
       Pauline contends that section 3, subdivision (e) places her petition within the
ambit of the former law. We disagree.

                                             26
       Section 3 of the Probate Code “governs the application of a new law except to the
extent otherwise expressly provided in the new law.” (§ 3, subd. (b).) Subject to
limitations provided within section 3, “a new law applies on the operative date to all
matters governed by the new law, regardless of whether an event occurred or
circumstance existed before, on, or after the operative date, including, but not limited to,
creation of a fiduciary relationship, death of a person, commencement of a proceeding,
making of an order, or taking of an action.” (§ 3, subd. (c).) Pauline invokes a limitation
found in subdivision (e): “If an order is made before the operative date, including an
order appointing a personal representative, guardian, conservator, trustee, probate referee,
or any other fiduciary or officer, or any action on an order is taken before the operative
date, the validity of the order or action is governed by the old law and not by the new
law. Nothing in this subdivision precludes proceedings after the operative date to modify
an order made, or alter a course of action commenced, before the operative date to the
extent proceedings for modification of an order or alteration of a course of action of that
type are otherwise provided by statute.” (§ 3, subd. (e).)
       Pauline does not contest the validity of an order made or an action taken thereon
before the operative date of the new law, January 1, 2010, which squarely places her
petition within the ambit of the new law. We are not persuaded otherwise by her citation
to Munn v. Briggs (2010) 185 Cal.App.4th 578, 593, fn. 5, which addressed a claim of
tortious interference and simply stated in conclusory fashion that the new law did not
apply to a codicil admitted to probate in 2008. We follow section 3, subdivision (d),
which provides that the “contents, execution, and notice” of a document filed before the
operative date of the new law are governed by the old law, “but any subsequent
proceedings taken after the operative date concerning the petition, account, report,
inventory, appraisal, or other document or paper, including an objection or response, a
hearing, an order, or other matter relating thereto is governed by the new law and not by
the old law.” (§ 3, subd. (d), emphases added; see also Donkin, supra, 58 Cal.4th at p.
427.) Although Stephen and Kathleen’s petitions were filed before the new law became

                                             27
operative, Pauline’s petition to enforce the no contest clause plainly is “an objection or
response,” or at the very least an “other matter relating thereto.” Thus, under section 3,
subdivision (d) the new law applies.
              2.      Pauline is not entitled to the fairness exception set forth in
section 3, subdivision (h).
       Pauline contends that her petition should be governed by the former Probate Code.
She argues that it would be “unfair” to apply the current Probate Code because it results
in a different, less favorable outcome for her. She accordingly requests that we apply the
“fairness exception” set forth in section 3, subdivision (h). We agree with Stephen and
Kathleen that the fairness exception is not applicable here.
       In Donkin, the Supreme Court held that the new law presumptively applies to
instruments that became irrevocable after January 1, 2001, but recognized that it would
be unfair to apply the new law “if application of the former law would compel a different
conclusion as to enforceability of a no contest clause and it is established that the
trustor(s) of the trust instrument drafted the no contest clause in reliance on the former
law.” (Donkin, supra, 58 Cal.4th at p. 416.) This two-pronged “fairness exception” is
grounded in section 3, subdivision (h), which provides: “If a party shows, and the court
determines, that application of a particular provision of the new law or of the old law in
the manner required by this section or by the new law would substantially interfere with
the effective conduct of the proceedings or the rights of the parties or other interested
persons in connection with an event that occurred or circumstance that existed before the
operative date, the court may, notwithstanding this section or the new law, apply either
the new law or the old law to the extent reasonably necessary to mitigate the substantial
interference.” Notably, the effect of the new law was intended to be modest such that
“[i]n most cases, there will be no difference in result between the former law and the
current law [citation] and the fairness exception will be inapplicable.” (Donkin, supra, 58
Cal.4th at p. 433.)



                                             28
       This is not an outlier case in which the outcome turns on which law is applied.
Under the former Probate Code, it was possible for an indirect contest such as that levied
by Stephen and Kathleen to violate a no contest clause. (Former § 21300, subds. (a) &
(c).) But the former Probate Code also included a list of proceedings that “do not violate
a no contest clause as a matter of public policy,” including indirect contests “challenging
the exercise of a fiduciary power,” “regarding the interpretation of the instrument
containing the no contest clause or an instrument or other document expressly identified
in the no contest clause,” or seeking to “compel an accounting or report of a fiduciary.”
(Former § 21305, subds.(b), (b)(6), (b)(9), (b)(12).)
       These public policy exceptions cover the allegations Pauline challenges.12
Stephen and Kathleen alleged that Wayne violated his fiduciary duties (former § 21305,
subd. (b)(6)), sought to compel an accounting (former § 21305, subd. (b)(12)), and, like
the petitioners in Donkin, at bottom sought an interpretation of the trust rather than to
void it or set aside its distributive plan (former § 21305, subd. (b)(9)). (Donkin, supra, 58
Cal.4th at pp. 433-434). Stephen and Kathleen’s allegations are virtually identical to and
are indistinguishable from those asserted by the petitioners in Donkin, who “alleged that
the accountings failed to disclose any segregation of the original trust estate into separate
trusts after the death of Rodney, as required by the terms of the Family Trust instrument,”
and that “the successor trustees had failed to make any distribution of Decedent’s Trusts
B and C after the death of Mary, as required by the terms of the trust agreement.”
(Donkin, supra, 58 Cal.4th at pp. 434-435.) The Donkin court concluded that these
claims, “fairly understood, . . . seek to resolve issues regarding the interpretation of the


       12
          To the extent Pauline challenges Stephen and Kathleen’s allegations concerning
the trust amendments, we agree with Stephen and Kathleen that such allegations do not
trigger the no contest clause under the former Probate Code. Courts interpreting former
section 21305, subdivision (a) consistently held that actions seeking to invalidate trust
amendments which did not themselves contain no contest clauses did not trigger a no
contest clause contained in the trust instrument. (See Townsend v. Townsend (2009) 171
Cal.App.4th 389, 392, 404-408; Cory v. Toscano (2009) 174 Cal.App.4th 1039, 1045-
1046; Perrin v. Lee (2008) 164 Cal.App.4th 1239, 1242, 1245-1247.)
                                             29
Family Trust instrument as amended by the Trust’s Second Amendment.” (Id. at p. 436.)
As the Donkin court explained, “[a] proposed pleading concerns the interpretation of an
instrument when its allegations put in issue a provision or term of the instrument that is
‘ambiguous and requires judicial interpretation.’ (Cory v. Toscano[, supra,] 174
Cal.App.4th [at p.] 1044 [ ].)” (Donkin, supra, 58 Cal.4th at p. 434.) That was exactly
the situation here, where Stephen and Kathleen claimed that the language of the trust
required one thing, Pauline claimed that the language of the trust as amended required
another, and the probate court concluded that the challenged provisions were
“contradictory, confused, indefinite, and ambiguous.” The factually similar Supreme
Court case of Donkin, is controlling; Cook v. Cook (2009) 177 Cal.App.4th 1436, an
earlier and factually distinguishable appellate court case Pauline relies upon, is not.
       We are not persuaded that the “voluminous, undisputed facts” concerning the
history of hostility between Wayne and his children recited in Pauline’s petition compel a
different result. Regardless of the nature of their relationship with their late father,
Stephen and Kathleen filed a petition that was statutorily exempt from the trust’s harsh no
contest clause under the former law. We accordingly conclude that the result under the
former law would be the same as the result under the current law, and that Pauline is not
entitled to the fairness exception.
V.     Stephen and Kathleen’s Appeal
       In their appeal, Stephen and Kathleen contend that Judge Penny should have
granted their petition to enforce the no contest clause against Pauline because Pauline
proposed “a reformation which materially altered what the trust required upon the death
of Harriett Andersen.” They further contend that the trust became irrevocable in 1993
and that its provisions unambiguously prohibited Wayne from revoking the B trust.
       As we discussed at length above, however, the issues of when the trust became
irrevocable and whether it was ambiguous were long ago resolved unfavorably to
Stephen and Kathleen, who did not timely challenge them on appeal and cannot relitigate
them now. We also will not consider at this juncture the related issues of whether the

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probate court properly considered extrinsic evidence when interpreting the trust, whether
Pauline’s proposed reformation was inconsistent with the tax objectives of the trust, and
whether Wayne’s alleged “buyer’s remorse” permitted him to amend the trust. We
previously determined that the amendments were valid and affirmed the probate court’s
unchallenged findings regarding the ambiguity of the trust and Wayne’s obligations not
to amend or revoke it. (See Andersen v. Hunt, supra, 196 Cal.App.4th at p. 732.) Those
rulings stand and are largely dispositive of the contentions Stephen and Kathleen raise on
appeal.
       To the extent our previous rulings are not dispositive, we agree with Pauline that
her petition for reformation should be analyzed under the current law, which does not
permit the enforcement of the no contest clause against it. We summarily reject her
contention that her request for reformation was successful, however; withdrawal of a
petition based on a court’s tentative rulings does not render it a successful one.
       A.     Pauline’s petition was not a “direct contest” as defined by the current
law.
       Because the trust became irrevocable well after January 1, 2001, the current law
presumptively applies. (§ 21315, subd. (a).) Under the portion of that law pertinent here,
the no contest clause is enforceable only against “[a] direct contest that is brought without
probable cause.” (§ 21311, subd. (a)(1).) The petition Pauline filed – which we consider
despite her subsequent withdrawal of it (see Schwartz v. Schwartz (2008) 167
Cal.App.4th 733, 745) – sought to reform paragraph 3.2 of the trust to conform to
extrinsic evidence showing that Wayne and Harriett did not intend to create and fund two
subtrusts. Her petition did not “allege[ ] the invalidity of a protected instrument or one or
more of its terms, based on one or more of the following grounds: [¶] (1) Forgery. [¶]
(2) Lack of due execution. [¶] (3) Lack of capacity. [¶] (4) Menace, duress, fraud, or
undue influence. [¶] (5) Revocation of a will pursuant to Section 6120, revocation of a
trust pursuant to Section 15401, or revocation of an instrument other than a will or trust
pursuant to the procedure for revocation that is provided by statute or by the instrument.

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[¶] (6) Disqualification of a beneficiary under Section 6112, 21350, or 21380.” (§ 21310,
subd. (b).) It accordingly was not a “direct contest” within the meaning of current section
21310, subdivision (b).
       B.     Even if it were a direct contest, it was supported by probable cause.
       Under the current law, “probable cause exists if, at the time of filing a contest, the
facts known to a contestant would cause a reasonable person to believe that there is a
reasonable likelihood that the requested relief will be granted after an opportunity for
further investigation or discovery.” (§ 21311, subd. (b).) Here, Pauline asked the court
to reform the language of the trust to comport with extrinsic evidence that she claimed
more accurately reflected the trustors’ intent when they established the trust. Pauline
attached some of this evidence to her petition when she filed it. The second and fourth
amendments to the trust explicitly supported her position at that time as well, as did
Wayne’s conduct during his life. Although arguably contrary to the intent expressed in
the original language of the trust itself, the amendments reflected Wayne’s own
understanding and expression of his intent. The script from attorney Jeffers corroborated
Wayne’s intent as expressed in the amendments. These facts would “cause a reasonable
person to believe that there [was] a reasonable likelihood” the court would reform the
trust to more accurately reflect Wayne’s true intent, and thus constitute probable cause.
(§ 21311, subd. (b).)
       C.     The former law is not applicable to Stephen and Kathleen’s petition.
       As we explained above, the parties are bound by the trial court’s determination
that the trust became irrevocable in 2006. The key consequence of that determination is
presumptive application of the current Probate Code. (See § 21315, subd. (a); Donkin,
supra, 58 Cal.4th at p. 416.) Unlike Pauline, Stephen and Kathleen made no effort to
overcome that presumption in their briefing by invoking the fairness exception or any
other exception. Instead, they relied solely upon the untenable position that the former
law applies because the trust became irrevocable upon Harriett’s death in 1993. We
rejected that position above and reject it here for the same reasons.

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         We do not consider whether the fairness exception nonetheless may warrant
application of the former Probate Code because we are not required to make arguments
for the parties. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) Even if
we were to reach that question, however, we would conclude that the fairness exception
is inapplicable here, as the former Probate Code compels the same conclusion as the
current Probate Code. (Donkin, supra, 58 Cal.4th at p. 416; see § 3, subd. (h).) Although
it was possible for an indirect contest like Pauline’s to violate a no contest clause under
former section 21300, subdivisions (a) and (c), indirect contests “regarding the
reformation of an instrument to carry out the intention of the person creating the
instrument” could “not violate a no contest clause as a matter of public policy” (former §
21305, subds. (b)(11), (e)). Pauline’s request for reformation of the trust to conform with
what she argued were Wayne’s true intentions plainly would fall within this public policy
exception and accordingly would not trigger enforcement of the no contest clause under
the former Probate Code. The fairness exception therefore would not warrant application
of the former law.
                                       DISPOSITION
         The orders of the probate court are affirmed. The parties are to bear their own
costs.
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                        COLLINS, J.


We concur:


EPSTEIN, P. J.


MANELLA, J.



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