Filed 3/12/14 Pakula v. Klein CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


JULIE PAKULA,                                                        B240523

         Petitioner and Appellant,                                   (Los Angeles County
                                                                     Super. Ct. Nos. BP120124, BP118404)
         v.

GARY KLEIN,

         Defendant and Respondent.



         APPEAL from judgments and an order of the Superior Court of Los Angeles
County, Reva G. Goetz, Judge. Affirmed.
         Pine & Pine, Norman Pine, Janet R. Gusdorff; Oldman, Cooley, Sallus, Gold,
Birnberg & Coleman, Marshal A. Oldman and Sarah Talei for Petitioner and Appellant.
         Lurie, Zepeda, Schmalz & Hogan, Steven L. Hogan and M. Damien Holcomb for
Defendant and Respondent.


                                          _______________________
       In a consolidated appeal from separate probate court proceedings concerning the
estate and the trust of Rina Pakula Klein,1 Julie Pakula, Rina’s mother and the successor
trustee of the Rina Pakula Klein Living Trust, appeals two judgments and an order for
probate dated April 11, 2012. Specifically, she contests the probate court’s determination
that the trust was limited to separate property and not did not contain community property
interests. She further contends that the court should have designated a number of specific
items of property as belonging to Rina’s trust; that it should have stricken the petition to
admit Rina’s will to probate; and that it should not have appointed Rina’s husband the
executor of her estate. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Rina and Gary were married and had three children. They created a family trust
with individual wills in 2007. In September 2008, Rina created a separate living trust
providing that trust property be distributed to her children, with Pakula as successor
trustee. Rina did not make a new will or amend her prior will.
       Rina died on May 31, 2009. Gary, named as executor in Rina’s will, petitioned
for probate of the will, for letters testamentary, and for authorization to administer her
estate. Pakula objected to Gary’s petition, contending that the will was not valid; that
signatures on the will and its first codicil were forged; and that Gary should not be the
executor as he was under investigation in conjunction with Rina’s death. Pakula
petitioned for orders under Probate Code2 section 850 determining particular real and
personal property to be assets of the Rina Pakula Klein Living Trust.
       Pakula propounded multiple written discovery requests to Gary and attempted to
set his deposition. Gary declined to respond to the discovery and refused to be deposed,
invoking the constitutional privilege against self-incrimination. Pakula moved to compel
responses and to compel Gary’s deposition. The probate court refused to compel the

1       Because Rina Klein and her husband Gary Klein share a last name, we use their
first names for clarity.

2      All further statutory references are to the Probate Code.

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deposition or to compel further responses to the discovery requests, but because of Gary’s
invocation of the privilege against self-incrimination, the court precluded Gary from
testifying at the evidentiary hearing in the probate court proceedings.
       The probate court conducted a bench trial encompassing Gary’s petition to admit
Rina’s will to probate and for letters testamentary, Pakula’s will contest, and Pakula’s
petitions to determine ownership under section 850. The will contest was effectively
negated prior to trial when Pakula stipulated that Rina’s will should be admitted to
probate. The probate court concluded that Gary was eligible to act as executor, and it
ruled that when Rina created her living trust, she effectively transferred all to it her
separate property that had previously been held in the Klein Family Trust, but did not
transfer any of her portion of the community property from the Klein Family Trust. The
court admitted Rina’s will to probate, appointed Gary executor of the estate, and ruled
upon the petitions under section 850 based on its determination that the Rina Pakula
Klein Living Trust held only Rina’s separate property. Pakula appeals.


                                       DISCUSSION

       I.     Scope of Rina Pakula Klein Living Trust

       Article One, section 1.03, subdivision (a) of the Rina Pakula Klein Living Trust
provides, “By execution of this agreement, I transfer, convey and assign to my Trustee
and my Trustee accepts and agrees to hold, the property described in Schedule A,
annexed hereto, together with all my right, title and interest in and to all of my property
that may by law be held in trust and that may, by this assignment, be transferred to my
trust. This assignment shall include, without limitation, all real and personal, tangible
and intangible property, located in the United States, whether separate or community,
whether acquired before or after the execution of this agreement except for the following
assets that are expressly not transferred to my trust by this assignment: [¶] Life
insurance policies, unless the ownership of a policy is transferred to my trust by a
separate instrument that specifically refers to such policy; [¶] Corporate and self-


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employed (“Keogh”) pension, profit sharing and stock bonus plans; [¶] Qualified
retirement plans; [¶] Commercial annuities; [¶] Any property, the transfer of which would
result in the immediate recognition of income subject to income or other taxes or the
transfer of which would result in the loss of a homestead exemption or violate a
restriction on transfer agreement.” Schedule A listed “Ten Dollars Cash.”
       Article Two of the Rina Pakula Klein Trust provides, “This trust contains only
separate property. I have chosen to leave that separate property to my children and not to
my spouse.”
       Pakula contends on appeal that the probate court erred when it concluded that the
Rina Pakula Klein Living Trust contained only Rina’s separate property, and that the
court should have determined that the trust contained not only her separate property but
also Rina’s share of the couple’s community property. “The interpretation of a will or
trust instrument presents a question of law unless interpretation turns on the credibility of
extrinsic evidence or a conflict therein.” (Burch v. George (1994) 7 Cal.4th 246, 254,
superseded by statute on other grounds as recognized in Estate of Rossi (2006) 138
Cal.App.4th 1325, 1331-1332, 1339.) Here, the probate court admitted extrinsic
evidence and stated in its statement of decision that it had considered all evidence
pleadings, evidence, and argument presented. Accordingly, we apply the substantial
evidence standard of review. (De Anza Enterprises v. Johnson (2002) 104 Cal.App.4th
1307, 1315.)
       Substantial evidence supports the probate court’s conclusion that Rina’s intent was
to convey only her separate property to her living trust. An electronic mail message from
Rina to her attorney days before she signed the trust instrument referred to the trust as
“the separate property revocable trust we are creating,” and asked whether she should
have her husband sign an agreement concerning money she had received before she
moved that money “into a separate property trust so there is not a claim that I put
community property in the separate property trust?” Shortly after signing the trust
instrument, Rina sent another electronic message describing the trust as “a separate
property trust for me” to use “for separate assets.” The attorney who prepared the trust

                                              4
instrument testified that the general funding language in Article One was language from
the computerized document drafting program she used. This tends to support the
conclusion that the Article One language was not expressive of Rina’s intent but that the
more specific language of Article Two articulating an intent to convey only separate
property actually expressed Rina’s wishes.
       This conclusion is consistent with the general principles for construction of an
instrument. In the construction of an instrument, “a particular intent will control a
general one that is inconsistent with it,” (Code Civ. Proc., § 1859), and “Particular
expressions qualify those which are general.” (Civ. Code, § 3534.) Here, Rina’s specific
statement of intent that her trust contain only her separate property in Article Two
controls over the very general language conveying all property that can be held in trust,
subject to standard exceptions, to the trust. (Code Civ. Proc., § 1859; Civ. Code, § 3534;
Estate of Cox (1970) 8 Cal.App.3d 168, 199 [trust language providing for alternate
methods of distribution in the event that powers reserved elsewhere in the trust are not
exercised is general and therefore subordinate to the specific provisions on the manner of
exercise of trust powers]; In re Greenleaf’s Estate (1951) 101 Cal.App.2d 658, 664-665
[the specific direction that trust income and funds from the sale of trust property be
distributed to one beneficiary controls over a general grant of discretion to trustee to
dispose of trust property].)

       A. Pakula’s Arguments
          1. Interpretation of the Trust Language
       Pakula contends that the court “ignored” Article One and “relied exclusively
upon” the language in Article Two. We do not understand the court’s finding that Article
Two reveals Rina’s intent to indicate a disregard of the language in Article One; rather, it
appears the court concluded, based on the trust instrument and the extrinsic evidence, that
the specific description of the trust contents in Article Two directly expressed Rina’s
intent. Pakula next asserts that the interpretation of the trust must be incorrect because
the ten dollars that funded Rina’s trust must be presumed to be community property; and


                                              5
that therefore the trust contained community property. We decline to consider this new
theory of the import of the origin of these funds on the interpretation of Rina’s intent in
creating the trust because Pakula does not appear to have raised it in the probate court.
“Because this theory is presented for the first time on appeal, this court will not consider
it. . . . [P]arties are not permitted to ‘“adopt a new and different theory on appeal. To
permit [them] to do so would not only be unfair to the trial court, but manifestly unjust to
the opposing litigant.” [Citations.]’ [Citations.]”].) (Mattco Forge, Inc. v. Arthur Young
& Co. (1997) 52 Cal.App.4th 820, 847.)
       Next, Pakula contends that the trust contained other language that contradicted the
probate court’s interpretation of the instrument. That the trust language is internally in
conflict regarding the trust’s contents is beyond dispute. The probate court concluded,
based on the instrument and extrinsic evidence, that Rina’s intent was to convey her
separate property to the trust, and that conclusion is supported by substantial evidence.
Pakula’s arguments about the way the trust could have been interpreted do not
demonstrate that the probate court’s interpretation was not supported by substantial
evidence.

            2. Application of Legal Principles

       Pakula argues that the probate court failed to apply controlling principles for the
interpretation of a trust. The record does not contain any support for Pakula’s
characterization of the court as acting with “no principled legal basis for resolving the
conflict” in this manner, “simply . . . selecting the narrower of the conflicting statements
without applying any of the applicable rules of construction.” We decline to assume that
the succinctness of the court’s discussion of Rina’s intent indicates insufficient analysis
or arbitrary decision making. The court expressly noted that it had considered all
pleadings, evidence, and argument presented, and its decision that Article Two rather
than Article One indicated Rina’s intent was supported by the law, the language of the
trust instrument, and extrinsic evidence.



                                              6
       Pakula argues that section 21120 should have caused the probate court to conclude
that Rina intended to convey her community property interests to the trust. Section
21120 provides that “words of an instrument are to receive an interpretation that will give
every expression some effect, rather than one that will render any of the expressions
inoperative.” Obviously, section 21120 cannot be successfully applied here, as the
provisions of the trust are in what Pakula accurately describes as “an irreconcilable
conflict”: Either Article One, section 1.03, subdivision (a) (to the extent it purported to
convey community property to the trust) or all of Article Two’s statement concerning the
funding of the trust had to be rendered inoperative. Pakula claims that the interpretation
that invalidates the fewest provisions should be selected; asserts that the court’s
interpretation of Rina’s trust intent contravenes Article One, section 1.03, subdivision (c)
(concerning the retained character of any community property conveyed to the trust) and
the broad definitions of tangible personal property in Article Six; and concludes that to
preserve these provisions of the trust instrument the probate court should have
determined that the trust included Rina’s interests in community property. Section 21120
requires no such conclusion, and it does not mandate any alternative outcome here.
       Next, Pakula contends that application of section 21121 leads to the conclusion
that Rina intended to convey her community property interests to the trust. Section
21121 requires that “All parts of an instrument are to be construed in relation to each
other and so as, if possible, to form a consistent whole. If the meaning of any part of an
instrument is ambiguous or doubtful, it may be explained by any reference to or recital of
that part in another part of the instrument.” While acknowledging Article Two’s explicit
statement that the trust contains only separate property, Pakula minimizes this provision,
instead relying on Article One, section 1.03, subdivisions (a) and (c), and Article Eight,
which includes Rina’s statement, “I have specifically disinherited my husband.
Therefore, for the purposes of this Article, he shall be deemed to have predeceased me.”
Although we agree with Pakula that section 21121 governs the interpretation of trust
instruments, the probate court already considered the trust as a whole, as well as the
extrinsic evidence, and resolved the conflicts in the trust language and the extrinsic

                                              7
evidence with its finding that Rina intended that the trust contain only her separate
property as stated in Article Two. Neither Article One, section 1.03, subdivision (c),
concerning the retention of community property characterization for any community
property that is conveyed to the trust, nor the statement in Article Eight that she has
disinherited her husband demonstrates a contrary intent to convey community property to
the trust or demonstrates that the court’s conclusion was not supported by substantial
evidence.

            3. Extrinsic Evidence

       Pakula contends that the probate court “ignored” extrinsic evidence that
demonstrated that Rina “intended to prevent Gary from handling, controlling, or
receiving any of her assets, whether community or separate.” Pakula’s assertion that the
court ignored evidence is contradicted by the court’s express statement in its statement of
decision that it considered all the evidence presented.
       Pakula then discusses the extrinsic evidence that she claims demonstrated that
Rina “intended to prevent Gary from handling, controlling, or receiving any of her assets,
whether community or separate.” This evidence consists of testimony from Pakula,
Rina’s sister, Rina’s aunt and uncle, Rina’s accountant, and a family friend, as well as an
excerpt from the deposition of Rina’s attorney that was admitted into evidence due to the
attorney’s unavailability. “‘Under the substantial evidence standard of review, “we must
consider all of the evidence in the light most favorable to the prevailing party, giving it
the benefit of every reasonable inference, and resolving conflicts in support of the
[findings]. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the
evidence; that is the province of the trier of fact. Our authority begins and ends with a
determination as to whether, on the entire record, there is any substantial evidence,
contradicted or uncontradicted, in support of the judgment.”’ [Citation.] ‘All
presumptions favor the trial court’s ruling, which is entitled to great deference . . . .’
[Citation.]” (In re Estate of Kampen (2011) 201 Cal.App.4th 971, 992.) Pakula’s
argument merely establishes a conflict in the evidence. The probate court resolved the

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conflict by concluding that Rina intended her trust to contain only separate property, and
this conclusion is supported by substantial evidence. We may not reweigh the evidence
on appeal.


       II.    Further Contentions Regarding the Rina Pakula Klein Living Trust

       Pakula contends that the probate court erred when it concluded that the Rina
Pakula Klein Living Trust revoked the Klein Family Trust with respect to Rina’s separate
property only, when in fact it revoked the family trust with respect to Rina’s share of the
community assets as well. Pakula first claims that this was error because the court based
its ruling on its incorrect determination that Rina assigned only her separate property to
her trust, but our conclusion that the probate court properly found that the trust was
intended to include only Rina’s separate property disposes of this argument. Pakula next
argues that the court’s conclusion is “independently analytically flawed” and asserts that
the analysis of the trust language and the case law support her conclusion that the Klein
Family Trust was revoked with respect to Rina’s community property interests as well,
but we find no analytical flaw in the conclusion that because Rina’s trust was intended
only to include her separate property, the creation of that trust did not transfer community
property away from the family trust.
       Pakula also argues that the probate court erred when it denied her section 850
petitions to transfer Rina’s community property interests in six specific items of
community property to the Rina Pakula Klein Living Trust. This argument, also based on
Pakula’s contention that the probate court erred in determining that Rina’s trust was
intended to contain only her separate property and that she transferred only her separate
property to it, fails in light of our conclusion that the probate court’s finding that Rina’s
trust was intended to contain only her separate property was supported by substantial
evidence. Pakula has not established any error here.




                                               9
       III.   Effect of Gary’s Invocation of the Privilege Against Self-Incrimination

       Gary refused to answer discovery requests propounded by Pakula, invoking the
privilege against self-incrimination. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15;
Evid. Code, § 940.) As a result of Gary’s refusal to waive this privilege, the probate
court barred him from testifying at trial. Pakula contends that the bar on testimony was
inadequate relief and that she was prejudiced because she “was unable to gather facts that
would have assisted her proof of the falsity of Rina’s purported Will and First Codicil.”
She argues that Gary’s petition to admit the will to probate should have been stricken
instead, and requests that this court remand the matter with instructions to strike Gary’s
petition.
       Pakula, however, stipulated that Rina’s will should be admitted and that the codicil
be denied probate for lack of due execution. Having stipulated to the admission of the
will, she cannot now appeal its admission to probate. (Flannery v. Prentice (2001) 26
Cal.4th 572, 591 [“‘A judgment rendered with consent of the appellant is not
appealable’”]; Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161,
181-182 [party that stipulated that all discretionary permits were obtained cannot
challenge court’s finding that the permits were obtained; appellant waives the right to
“attack error by expressly or impliedly agreeing at trial to the ruling or procedure
objected to on appeal”].) While Pakula contends that she was just “mak[ing] the best out
of a bad situation,” Pakula stipulated to the fundamental issue in a petition to admit a will
to probate in exchange for the concession that the codicil not be admitted. This,
therefore, was not a stipulation made to facilitate an appeal following an adverse decision
of a critical issue (see Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 402-403), or mere
acquiescence to the authority of a challenged adverse ruling by proceeding in accordance
therewith after making objections. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d
202, 212-213.) Instead, it was a substantive bargain to forgo opposition to the admission
of the will to probate in exchange for avoidance of the impact of admission of the codicil.
Having stipulated to the admission of the will to probate, and having received the benefit


                                             10
of her bargain, Pakula may not attempt on appeal to undo her consent to the will’s
admission to probate.


       IV.     Appointment of Gary as Executor

       Rina’s will named Gary as executor of her estate. Accordingly, Gary had the right
to appointment as her personal representative unless he was incompetent to serve. The
only potential basis for considering him incompetent to serve was that there could be
grounds for his removal under section 8502 (§§ 8420, 8402, subd. (a)(3).) Because there
was no evidence that Gary had wasted, embezzled, mismanaged, or committed a fraud on
the estate, or that he was about to do so (§ 8502, subd. (a)); that he was incapable of
performing his duties or unqualified for appointment (§ 8502, subd. (b)); that he had
wrongfully neglected the estate or long neglected to perform any act as personal
representative (§ 8502, subd. (c)), these provisions for removal were not at issue before
the probate court. The court concluded that Gary was not precluded from appointment on
the ground that his removal would be necessary for the protection of the estate or
interested persons (§ 8502, subd. (d)), and appointed him as Rina’s executor, finding that
“no evidence was presented at trial from which the court could find grounds that Gary
would be removed if acting as executor for Rina’s estate.” Pakula appeals the
appointment.
       Pakula devotes many pages to her argument, contending that the court’s
conclusion “makes no sense,” is inconsistent with the evidence, and is an abuse of
discretion, but the gravamen of her argument is that although she had named him her
executor, by the end of her life, Rina would not have wanted Gary to serve as the
executor of her estate. She discusses evidence that tends to demonstrate that Rina did not
trust Gary at the end of her life and that she feared him, but this evidence does not
demonstrate that Gary’s removal as executor would be necessary “for protection of the
estate or interested persons.” (Prob. Code, § 8502, subd. (d).)
       Pakula also argues that Gary should not be permitted to serve as executor of
Rina’s estate because “now that Gary is fully aware of Rina’s efforts to secretly disinherit

                                             11
and thwart him, it is unreasonable to assume that Gary would be able to put aside his own
anger, resentment and biases in order to fulfill his fiduciary duties to their children as
beneficiaries, and to [Pakula], as Rina’s intended successor trustee. Moreover, it would
be especially inappropriate to appoint Gary as [Pakula’s] fiduciary, in light of the fact
that they are adversaries” in litigation regarding access to the grandchildren and the Rina
Pakula Klein Living Trust. While a conflict of interest may be grounds for removal
under section 8502, subdivision (d) and therefore a basis for refusing to appoint a named
executor, “not every conflict necessarily requires removal for protection of the estate,
depending on the circumstances of the particular case.” (Cal. Law Revision Com. Com.,
West’s Ann. Prob. Code foll. § 8502.) Here, Pakula has not presented evidence of any
actual conflict of interest, instead asking this court to presume that because of anger and
antipathy Gary will fail to fulfill his fiduciary duties to his children and to Pakula as
successor trustee. As Pakula has not presented any nonspeculative basis for concluding
that Gary would be subject to removal if appointed as executor, she has not demonstrated
any error in appointing Gary as Rina’s executor.


                                       DISPOSITION

       The judgments and order are affirmed.




                                                   ZELON, J.
We concur:




       PERLUSS, P. J.




       WOODS, J.



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