Filed 6/30/15 George v. Gandolfo Excavating, Inc. CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



RAYMOND GEORGE,
         Plaintiff and Appellant,
                                                                     A141249
v.
GANDOLFO EXCAVATING, INC. et                                         (Alameda County
al.,                                                                 Super. Ct. No. HG12628707)
         Defendants and Respondents.


         This dispute arises out of the “brushing,” or clearing, of a fence line on 25 acres of
rural land on Mines Road in Livermore, California (the Property). When Gandolfo
Excavating, Inc., and John and Joe Gandolfo (collectively, Gandolfo) brushed the fence
line, decedent Jerry Patterson’s revocable trust held title to the Property. Several months
later, Patterson died and plaintiff Raymond George became successor trustee and
inherited the Property. George transferred title to the Property to his own trust.
         George later sued John Tullis and Gandolfo (collectively, defendants) for, among
other things, trespass, discomfort and annoyance as a result of trespass, and destruction of
trees on the Property. Defendants moved in limine to exclude evidence of George’s
damages, claiming George had “no standing” because Patterson owned the Property
when the alleged damage occurred and he did not assign his claims to George. The court
granted defendants’ motions in limine, and their motions for a nonsuit or directed verdict,
and entered judgment for defendants.



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       George appeals. He contends the court erred by granting defendants’ in limine
and nonsuit motions. He claims he had “standing” to sue defendants for the damage to
the Property on several grounds, including as a successor trustee. We agree and reverse.
We conclude: (1) as successor trustee, George was the real party in interest with standing
to sue defendants for damage to the Property; and (2) a factual dispute regarding whether
George occupied the Property precluded the court from granting defendants’ in limine
motion on George’s claim for discomfort and annoyance as a result of trespass.
                   FACTUAL AND PROCEDURAL BACKGROUND
       George and Patterson were close friends. In 1999, George created the Raymond
A. George Revocable Trust, naming himself as the trustee (George Trust). In 2006,
Patterson created the Jerry R. Patterson Revocable Trust (Patterson Trust) naming
himself as settlor and original trustee and George as successor trustee and sole
beneficiary.1 The Patterson Trust held title to the Property. Tullis owns land bordering
the Property. Over several days in 2009, Gandolfo used a bulldozer to clear dirt and
small trees and brush and to install metal fence posts along the border Tullis’s property
shares with the Property.2 Gandolfo also cut an access road through the Property.
       Patterson died in 2010. George became the successor trustee of the Patterson
Trust and title to the Property vested in him as successor trustee. In 2011, George
transferred title from himself as successor trustee of the Patterson Trust to himself as an
individual, and then to himself as trustee of the George Trust. In 2012, George filed a
complaint against defendants alleging causes of action for: (1) trespass; (2) destruction of
real property; (3) destruction of trees (Civ. Code, § 3346; Code Civ. Proc., § 733); (4)

1
       We deny George’s request for judicial notice of the Jerry R. Patterson Revocable
Trust and the last will and testament of Jerry R. Patterson because these documents were
not before the trial court when it ruled on defendants’ motions in limine. (Jordan v.
Superstar Sandcars (2010) 182 Cal.App.4th 1416, 1421, fn. 2.)
2
       Plaintiffs Jonathan Salas and Brenda Kusler own adjoining property. They settled
with defendants and are not parties to this appeal. George and defendants disagree on the
events leading up to the brushing of the fence line, including whether there was an
agreement to install a fence between the two properties, and whether defendants had
permission to brush the fence line along the Property.

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discomfort and annoyance as a result of trespass; (5) negligence and negligence per se;
(6) indemnification; and (7) conversion. George alleged he owned the Property and
defendants “failed to properly excavate the land, trespassed on the [P]roperty . . . and
caused the destruction of land, trees and vegetation[.]” In addition, George alleged
defendants’ trespass caused him “discomfort and annoyance.” George sought
compensatory, statutory, and punitive damages, seeking to recover the amount it would
cost to put the Property in “its pre-excavation state” and to compensate him for “damages
from the destruction of trees, shrubs and vegetation[.]” George also sought damages for
trespass, annoyance and discomfort. In their answers, defendants averred, among other
things, George was “not an owner or an occupant of the [P]roperty” and had suffered “no
cognizable damage.”
       Defendants moved to bifurcate trial, requesting “the issue of standing . . . be tried
before all other issues.” They contended George lacked standing to sue because the
claims belonged to Patterson and “were never transferred or assigned to . . . George . . .
As such, George is not the real party in interest.” According to defendants, “[t]he real
party in interest at the time the incident occurred was . . . Patterson and/or the . . .
Patterson . . . Trust.” George opposed the motion to bifurcate and the court denied it.
       Defendants then moved in limine to exclude evidence of George’s damages,
claiming he had “no standing to make a claim for the damages” Patterson allegedly
suffered. As they did in their motion to bifurcate, defendants argued Patterson — not
George — was the real party in interest because Patterson owned the Property when the
alleged damage occurred and he did not assign his claims to George. Defendants also
argued only Patterson’s “personal representative or legal successor in interest, such as his
executor or administrator” had standing to sue for damage to the Property and the “proper
procedure” was for the executor of the Patterson estate to file the complaint, “alleging his
judicially appointed legal capacity as the real party in interest.” Finally, defendants
argued only Patterson’s estate — as the “‘owner of the land’” — could assert statutory
claims for tree cutting damages. Defendants urged the court to exclude evidence of
damage to the Property as “irrelevant and legally improper.”


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       In opposition, George argued he was not required to show he owned the Property
at the time it was damaged; he claimed he was the real party in interest entitled to sue as
successor trustee of the Patterson Trust. George also argued he was not required to prove
Patterson assigned or transferred claims to him but argued he could prove such an
assignment “through oral acts and implied by . . . conduct” and described what the
“evidence [would] establish[.]” Finally, George contended there was no danger of
multiplicity of lawsuits because he — and no one else — owned and possessed the
Property.
       The court heard and granted defendants’ motions in limine at an unreported
chambers conference. On George’s request, the court held a reported hearing to allow
George “to make his record.” At the outset of the hearing, however, the court explained
it had already “resolved” the motions in defendants’ favor. Counsel for George argued
factual issues regarding George’s standing required an evidentiary hearing. Counsel
made an offer of proof that George had a possessory interest in the Property at the time of
the damage, and that Patterson had assigned his rights to George. Counsel explained
Patterson and George “enjoyed a father-and-son-like relationship for many, many years”
and that George had “every access to the [P]roperty at any time. . . . He treated the
property as his own. He did so” because of his relationship with Patterson and because
“he was providing services for Mr. Patterson, such as fixing up the . . . house. . . .”
       In response, counsel for Gandolfo observed “the argument was made that he was
close to Mr. Patterson, and Mr. Patterson let him use the property periodically. [¶] What
we’re talking about is a legal right to use the property, as an owner would have, as a
tenant who has a lease would have. The mere fact that Mr. Patterson let Mr. George use
the property because they were friends, that doesn’t give Mr. George the legal standing to
basically file a lawsuit for damage that existed at the time that Mr. Patterson was in
possession and owned the property.” Counsel for Gandolfo argued the “friendship
association” between Patterson and George did not confer “the kind of legal standing that
we’re talking about.” The court concluded there was “no need for an evidentiary
hearing[.]”


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       When George’s counsel argued George had standing as successor trustee, the court
disagreed, noting “the trustee at the time of the alleged injury to the alleged bulldozing
incident was not . . . George. It was Jerry Patterson. . . . [¶] . . . George was his successor
trustee and couldn’t act to do anything until he . . . was appointed the actual trustee; and
by that time, the damage had happened.” Counsel for George pointed out the
consequences of defendants’ argument — that an action for damages to real property
would “dissolve anytime that the original trustee dies” — and explained: “We have a
trustee; he died. And guess what? [Defendants have] gotten away with running all over,
helter-skelter over the [P]roperty, digging it up . . . without being concerned for any cause
of action because it died with the trustee.” In response, the court observed “Patterson
owns the property. He’s the trustee of the trust. By agreement, Gandolfo runs his
bulldozer, in some sort of effort to brush the fence line, and whatever he did, he did.
Patterson does nothing. Presumably . . . he knew about it. Everyone knew about it. He
does nothing. The . . . property passes to . . . George; and all of a sudden . . . George gets
it into his head to do something about it.”
       At the conclusion of the hearing, the court stated it “adhere[d]” to its previous
ruling. The court granted defendants’ motions in limine and excluded evidence of
George’s damages. Defendants then moved for nonsuit or directed verdict, claiming
George’s inability to “establish the requisite standing and damage elements” was “fatal to
his entire suit[.]” The court granted the motions, dismissed George’s complaint with
prejudice, and entered judgment for defendants.
                                        DISCUSSION
                                               I.
                                     Standard of Review
       “‘In limine motions are designed to facilitate the management of a case, generally
by deciding difficult evidentiary issues in advance of trial.’ [Citation.] As case law
recognizes, however, motions in limine also can function as ‘an objection to any and all
evidence on the grounds [the] pleadings [are] fatally defective’ for failure ‘to state a
cause of action.’ [Citation.] In such cases, the in limine motion ‘operate[s] as a general

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demurrer to [the] complaints or a motion for judgment on the pleadings.’ [Citation.]
‘Alternatively,’ where such motions are granted ‘at the outset of trial with reference to
evidence already produced in discovery, they may be viewed as the functional equivalent
of an order sustaining a demurrer to the evidence, or nonsuit.’ [Citation.] ‘A motion for
nonsuit or demurrer to the evidence concedes the truth of the facts proved, but denies as a
matter of law that they sustain the plaintiff’s case.’ [Citation.]” (City of Livermore v.
Baca (2012) 205 Cal.App.4th 1460, 1465.) Where, as here, “the court’s order excludes
all evidence on a particular claim and, as a result, operates as a motion for nonsuit, we
review the court’s order de novo, examining the record in the light most favorable to the
party offering the evidence. [Citation.] In such cases, ‘all inferences and conflicts in the
evidence must be viewed most favorably to the nonmoving party.’ [Citation.]” (Id. at p.
1465.)
                                              II.
              As Successor Trustee, George Was the Real Party in Interest with
                        Standing to Sue for Damage to the Property
         Except as otherwise provided by statute, “[e]very action must be prosecuted in the
name of the real party in interest. . . .” (Code Civ. Proc., § 367.) “Real party in interest
issues are often discussed in terms of plaintiff’s ‘standing to sue.’” (Weil & Brown, Cal.
Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 2:2, p. 2-2
(Rutter); but see Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th 980,
989-992 [the term “standing” is a misnomer and the issue is whether the plaintiff is a real
party in interest].) “Standing is the threshold element required to state a cause of action .
. . . To have standing to sue, a person, or those whom he properly represents, must ‘“have
a real interest in the ultimate adjudication because [he] has [either] suffered [or] is about
to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant
facts and issues will be adequately presented.” [Citation.]’ [Citation.] . . . A real party in
interest is one who has ‘an actual and substantial interest in the subject matter of the
action and who would be benefited or injured by the judgment in the action.’ [Citation.]”
(Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031-1032;


                                              6
Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 1001.)
“‘The purpose of the real party in interest requirement is to assure that any judgment
rendered will bar the owner of the claim sued upon against relitigating. “It is to save a
defendant, against whom a judgment may be obtained, against further harassment or
vexation at the hands of some other claimant to the same demand.” [Citations.]’”
(O’Flaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1094 (O’Flaherty); Standard Fire
Ins. Co. v. Spectrum Community Assn. (2006) 141 Cal.App.4th 1117, 1140 (Standard
Fire).)
          In the trial court, defendants claimed George lacked standing because he did not
own the Property when the alleged damage occurred. The court was persuaded: it
concluded “the trustee at the time of the alleged injury to the alleged bulldozing incident
was not . . . George. It was Jerry Patterson. . . . [¶] . . . George was his successor trustee
and couldn’t act to do anything until he . . . was appointed the actual trustee; and by that
time, the damage had happened.” Defendants — and the trial court — are mistaken.
          “‘An estate or trust is not a legal entity, and therefore has neither capacity nor
standing to sue[.]’ Title to estate or trust assets is held by the . . . trustee, on behalf of the
beneficiaries. Thus, as to claims held by an estate or trust, the . . . trustee is the real party
in interest. Such fiduciary has the right to sue[.]’ [Citation.]” (O’Flaherty, supra, 115
Cal.App.4th at p. 1095; In re Estate of Bowles (2008) 169 Cal.App.4th 686, 692; see also
Moeller v. Superior Court (1997) 16 Cal.4th 1124, 1132, fn. 3 (Moeller) [the “trustee . . .
is the real party in interest in litigation involving trust property”].) The “trustee has the
power to prosecute or defend actions, claims, or proceedings for the protection of trust
property and of the trustee in the performance of the trustee’s duties.” (Prob. Code, §
16249.)3
          When Patterson died, George became the successor trustee with standing to sue
for damage to the Property. A successor trustee “‘succeed[s] to all the rights, duties, and
responsibilities of his predecessors’” (Moeller, supra, 16 Cal.4th at p. 1131) and “can


3
          Unless noted, all further statutory references are to the Probate Code.

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maintain the same actions or suits that the original trustee could have maintained.” (5
Scott & Ascher on Trusts (5th ed. 2006) § 28.1.3, p. 1936, fn. omitted.) As the successor
trustee, George “stood in the shoes” of Patterson and was the real party in interest entitled
to sue for damage to the Property. (Eddy v. Fields (2004) 121 Cal.App.4th 1543, 1548;
see also Borissoff v. Taylor & Faust (2004) 33 Cal.4th 523, 527, 530 [probate estate’s
successor fiduciary had standing to sue attorneys retained by predecessor fiduciary for
malpractice committed during predecessor’s term].)
       We are not persuaded by defendants’ argument — raised for the first time on
appeal — that George failed to establish standing because his complaint did not allege his
successor trustee status.4 “Where the legal title to property is vested in the trustee, it is
unnecessary to state in the complaint the means by which plaintiff acquired it, and so far
as concerns the defendant he is the real party in interest and may sue in his own name.”
(McKoin v. Rosefelt (1944) 66 Cal.App.2d 757, 768.) And where — as here — the
trustee and beneficiary of a trust are the same person, that person may sue in his own
name, without mentioning the trust. (Hassoldt v. Patrick Media Group, Inc. (2000) 84
Cal.App.4th 153, 171-172, disapproved on another ground in People v. Rogers (2013) 57
Cal.4th 296; see also Rutter, supra, ¶ 2:6, p. 2-3.)
       Next, defendants argue George lacked standing because his duties as successor
trustee concluded when he transferred the Property out of the Patterson Trust. We
disagree. Because the Patterson Trust document is not before us, we are unable to
determine whether it terminated, either pursuant to an express provision in the trust or
pursuant to section 15407, subdivision (a), which identifies when a trust terminates. (§
15407, subd. (a)(1)-(5).) But even when a trust terminates, “the trustee continues to have

4
        We are puzzled by defendants’ contention the “proper procedure in this case was
for the executor of the Patterson estate to file the trespass complaint.” “Property held in a
revocable living trust is not subject to probate administration after the settlor dies.”
(Valentine v. Read (1996) 50 Cal.App.4th 787, 792, italics added.) In the trial court,
counsel for Gandolfo acknowledged “there is no probate, there is no executor
appointed[.]” We also reject defendants’ claim — made at oral argument — that the
cause of action for damage to the Property belonged to the Patterson Trust, and there was
no evidence Patterson transferred the cause of action to the Patterson Trust.

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the powers reasonably necessary under the circumstances to wind up the affairs of the
trust.” (§ 15407, subd. (b).) This includes “‘“such powers as are ‘“necessary or proper
for the preservation of the trust property,’”” including “‘“the power to maintain actions
on behalf of the trust. [Citations.]” (Estate of Nicholas (1986) 177 Cal.App.3d 1071,
1082, fn. 3.) Assuming for the sake of argument the Patterson Trust terminated, George
— as successor trustee — had the power to “wind up the affairs of the trust” and sue for
damage to trust property. (§ 15407, subd. (b); see also § 16249, & Hise v. Superior Court
(1943) 21 Cal.2d 614 [even if liquidation of trust assets terminated trust, trustee’s
obligations continued until trust proceeds were distributed].)
       Gurkewitz v. Haberman (1982) 137 Cal.App.3d 328 (Haberman) is instructive.
There, defendant attorneys represented two trustees in the trust’s action against an
insurance company. After the trustees’ complaint was dismissed for failure to prosecute,
the trustees sued the attorneys for malpractice. (Id. at pp. 331-332.) On appeal, the
defendants argued the trustees could not sue on behalf of the trust because the legal
malpractice suit “arose after the creation of the trust, was not contemplated at the time of
the creation of the trust agreement, and indeed did not accrue until the time for
termination of the trust had passed.” (Id. at p. 337.) The Haberman court disagreed and
concluded “[t]he malpractice action arose as part of the trustees’ duty to the trust—to
effect the most favorable outcome possible for the beneficiaries in all matters having to
do with the [the trust property]. The pursuit of this action was part of the trustees’
powers and duties appropriate to winding up the affairs of the trust.” (Id. at p. 338.)
       The same is true here. Even if we assume the Patterson Trust terminated when
George transferred the Property out of the Patterson Trust, George’s lawsuit against
defendants “was part of [his] powers and duties appropriate to winding up the affairs of
the trust.” (Haberman, supra, 137 Cal.App.3d at p. 338.) Defendants do not discuss
Gurkewitz or attempt to distinguish it. Instead, Tullis relies on Salvation Army v. Price
(1995) 36 Cal.App.4th 1619 (Price). In Price, the parties agreed the trust terminated, and
the issue on appeal was whether and when charitable beneficiaries acquired a vested
interest in trust assets. (Id. at p. 1624.) Price has no application here because the parties


                                              9
do not agree the Patterson Trust terminated, nor does this case concern when a charitable
beneficiary’s title to trust assets vests.
       As we have explained, the purpose underlying the real party in interest rule is to
“‘protect a defendant from a multiplicity of suits and the further annoyance and vexation
at the hands of other claimants to the same demand. [Citations.]’” (Standard Fire,
supra, 141 Cal.App.4th at p. 1140.) There is no potential for a “multiplicity of suits”
here, nor any possibility of “further annoyance and vexation at the hands of other claims
to the same demand.” (Ibid.) Patterson is deceased. George is the successor trustee and
the sole beneficiary of the Patterson Trust. He is also the owner of the Property.
Defendants have not identified any parties “making competing claims to the same
damages.” (Id. at p. 1141.) Moreover, defendants have not argued — and cannot
establish — the purpose underlying the real party in interest requirement “would be
thwarted if [George] were construed” to hold claims against them. (Ibid.)
       We conclude George, as successor trustee to the Patterson Trust, was the real party
in interest with standing to sue defendants for damage to the Property. Having reached
this result, we need not consider George’s claim that he also had standing to sue as an
assignee.
                                             III.
    A Factual Dispute Regarding Whether George Occupied the Property Precluded
               the Court from Granting Defendants’ in Limine Motions
       As stated above, the complaint alleged a claim for discomfort and annoyance as a
result of trespass. George’s status as successor trustee did not confer standing to sue for
discomfort and annoyance as a result of trespass. As a general rule, only an “‘occupant’”
of land may recover damages for annoyance and discomfort arising out of a trespass.
(Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 456.) “‘[O]ccupancy’
necessarily entails some physical presence on the property. . . . [¶] Annoyance and
discomfort damages are intended to compensate a plaintiff for the loss of his or her
peaceful occupation and enjoyment of the property.” (Ibid.)




                                             10
       Tullis contends George cannot sue for discomfort and annoyance as a result of
trespass because he did not occupy the Property when it was allegedly damaged. In
response, George contends he had standing to raise this claim because he was a “trust
beneficiary in actual possession” of the Property. There is clearly a factual dispute here
regarding whether George was an occupant of the Property during the relevant time
period: defendants contend George did not occupy or possess the property at the time of
the alleged damage, and George claims he did. At the hearing on defendants’ in limine
motions, counsel for George requested an evidentiary hearing and made an offer of proof
that Patterson and George “enjoyed a father-and-son-like relationship for many, many
years” and that George had “every access to the [P]roperty at any time. . . . He treated the
property as his own. He did so” because of his relationship with Patterson and because
“he was providing services for Mr. Patterson, such as fixing up the . . . house. . . .” The
court rejected George’s request for an evidentiary hearing and his offer of proof, the
effect of which was to preclude George from presenting any evidence to establish his
standing to bring the claim for discomfort and annoyance as a result of trespass.
       This was error. “To have the sufficiency of the pleading or the existence of triable
issues of material fact decided in the guise of a motion in limine is a perversion of the
process.” (R&B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327,
371, conc. opn. of Rylaarsdam, J.); Miller v. Campbell, Warburton, Fitzsimmons, Smith,
Mendel & Pastore (2008) 162 Cal.App.4th 1331, 1337-1338 [expressing “disfavor” for a
motion in limine that “test[ed] the factual basis for a claim” and noting a motion in limine
which “was, in effect, a motion for summary judgment or for nonsuit[,]” could not be
granted where there was a conflict in the evidence].)
                                      DISPOSITION
       The judgment is reversed. The orders granting defendants’ motions in limine
excluding George’s damages and their motions for nonsuit or directed verdict are
reversed and the court is directed to deny these motions. George is entitled to costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(2).)



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                                 _________________________
                                 Jones, P. J.




We concur:


_________________________
Needham, J.


_________________________
Bruiniers, J.




A141249


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