Filed 11/3/16
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION FIVE



Estate of MARGOR DAYAN,                  B268416
Deceased.
ERMOND JOSEPH NATHANSON,                 (Los Angeles County
                                         Super. Ct. No. LP016722)
       Plaintiff and Appellant,

       v.

ANTHONY M. NATHANSON,

       Defendant and Respondent.

     APPEAL from orders of the Superior Court of Los Angeles
County, Daniel S. Murphy, Judge. Affirmed.

      Orren & Orren and Tyna Thall Orren; David A. Shapiro for
Plaintiff and Appellant.

     Wilheim & Wilheim and Steven C. Wilheim for Defendant
and Respondent.
                        I. INTRODUCTION

     Plaintiff, Ermond J. Nathanson, and defendant, Anthony
M. Nathanson, are brothers. Plaintiff appeals after the probate
court denied his Probate Code1 section 850, subdivision (a)(2)
petition for an order conveying commercial real property in North
Hollywood (the property). In addition, the probate court denied
plaintiff’s judgment on the pleadings motion. The judgment on
the pleadings motion asserted that defendant had violated the
will’s no contest clause.
       The testator, Margor Rachael Dayan, the mother of
plaintiff and defendant, had an interest in the property. Her will
conveyed all her rights, title, and interests in the property to
plaintiff’s trust. Plaintiff filed a petition for an order to establish
that Ms. Dayan’s estate had title to the property in its entirety.
Defendant opposed the section 850, subdivision (a)(2) petition
asserting he owned a one-third interest in the property. Also,
plaintiff filed a petition asserting defendant had violated the
will’s no contest clause. Plaintiff filed a separate judgment on the
pleadings motion raising the no contest cause issue.
       Following trial, the probate court ruled defendant owned a
one-third interest in the property. The probate court denied
plaintiff’s judgment on the pleadings motion. We affirm the
probate court’s orders in their entirety.




1    Further statutory references are to the Probate Code unless
otherwise noted.




                                  2
                      II. BACKGROUND

     A. Title in the Property Prior to Execution of the Will

       On July 27, 1978, a grant deed was executed transferring
title in the property in joint tenancy to: Ms. Dayan; Ms. Dayan’s
daughter, Tama Dayan Nathanson (now Tama Marantz);
plaintiff; and defendant. The devisees were doing business as
Dayan and Dayan Enterprises. The grant deed was recorded on
August 7, 1978. A quitclaim deed, recorded on August 11, 1983,
transferred title to Ms. Dayan, Ms. Marantz and defendant as
joint tenants doing business as Dayan and Dayan Enterprises. A
quitclaim deed recorded February 26, 1986, transferred title in
the property to defendant or Ms. Dayan as trustees under an
agreement dated January 30, 1986. A quitclaim deed recorded on
September 17, 1986, corrected the February 26, 1986 quitclaim
deed by transferring title in the property as follows: defendant
and Ms. Dayan as trustees of the Nathanson Family Trust of
1986 (Nathanson Trust) received an undivided one-third interest;
Ms. Marantz received an undivided one-third interest; and
defendant received an undivided one-third interest.
       A quitclaim deed recorded October 25, 1993, transferred
title in the property from Anton Peter Marantz to Ms. Marantz, a
married woman, as her sole and separate property. A trust
transfer deed recorded March 22, 1994, transferred Ms.
Marantz’s individual title to her as trustee of the Tama Marantz
Family Trust dated March 16, 1994 (Tama Trust). A May 16,
2002 quitclaim deed transferred title in the property from Ms.
Marantz as the Tama Trust trustee to defendant and Ms. Dayan




                                3
as the Nathanson Trust trustees. By the time of the will’s
execution, defendant had a one-third interest in the property.

                 B. The November 20, 2009 Will

       On November 20, 2009, Ms. Dayan executed the “Last Will
and Testament of Margor Rachel Dayan” (the will). Ms. Dayan’s
will indicates that her late husband, Louis Nathanson, had
predeceased her on an unspecified date. (No issue was raised in
the probate court or on appeal concerning Ms. Dayan’s late
husband’s right to the property.) Defendant and plaintiff are the
will’s co-executors. The November 20, 2009 will revoked all
previous wills, trusts, and codicils, including two prior wills dated
October 19, 2008, and April 28, 2009 and the Nathanson Trust.
       The will bequeathed various real and personal property to
Ms. Marantz, defendant, and plaintiff. As to the property, the
will provides in pertinent part, “Further, I direct my [c]o-
Executors to transfer to the [Ermond J. Nathanson Testamentary
Trust] all title, rights and interests in the real property known as
11470 Vanowen Street, North Hollywood, California . . . .”
Further, the will states, “It is my intention by this [w]ill to
dispose of all property of my probate estate.”
       The will also contains a no contest clause. The no contest
clause provides in pertinent part: “If any devisee, legatee or
beneficiary under this Will, or any heir of mine or any person
claiming under this Will or any trust established by me, directly
or indirectly: [¶] a. Contests or in any manner attacks or seeks
to impair or invalidate any of the provisions of this Will or the
Revocation of Trust executed concurrently herewith; [¶] . . . [¶]
f. Asserts a community property, quasi-community property




                                  4
and/or separate property interest in any asset in contravention of
any document executed by me; [¶] . . . [¶] then, in that event, all
such legacies, bequests, devises and interests given under this
Will to that person shall be forfeited as though he or she
predeceased me without issue.” Ms. Dayan died on May 20, 2012.

C. Petitions, Judgment on the Pleadings Motion and Defendant’s
                      Responses Thereto

       On September 11, 2012, plaintiff filed a petition for probate
of the will and for letters testamentary. The inventory and
appraisal of Ms. Dayan’s estate indicates Ms. Dayan owned only
a two-thirds interest in the property. On March 14, 2014,
plaintiff filed a petition to remove defendant as a representative
under section 8502, subdivision (d).2 Plaintiff asserts defendant
had claimed a one-third interest in the property separate from
the estate. Plaintiff contends defendant’s actions conflicted with
the no contest clause of the will. Plaintiff also alleges that
defendant made claims which other interested parties assert
belong to the estate.


2     Section 8502 states: “A personal representative may be
removed from office for any of the following causes: [¶] (a) The
personal representative has wasted, embezzled, mismanaged, or
committed a fraud on the estate, or is about to do so. [¶] (b) The
personal representative is incapable of properly executing the
duties of the office or is otherwise not qualified for appointment
as personal representative. [¶] (c) The personal representative
has wrongfully neglected the estate, or has long neglected to
perform any act as personal representative. [¶] (d) Removal is
otherwise necessary for protection of the estate or interested
persons.” [¶] (e) Any other cause provided by statute.”



                                 5
       On August 27, 2014, plaintiff filed a section 850,
subdivision (a)(2) petition for orders: establishing that Ms.
Dayan’s estate owned the property in its entirety; directing
defendant to transfer title to the estate; and for other
appropriated orders. Plaintiff relied on various changes in
ownership interest in the property as reflected in the trust and
quitclaim deeds recorded since 1978. Plaintiff admitted
defendant held a one-third legal title in the property. But
according to plaintiff, Ms. Dayan had 100 percent equitable title
in the property at the time of her death. On October 29, 2014,
defendant filed his response to the section 850, subdivision (a)(2)
petition. Defendant’s response argues: the 1978 to 1986 deeds
transferred one-third of the interest in the property to him;
Evidence Code section 622 provides that the facts in a written
instrument are presumed be true; Ms. Dayan’s death did not
change the effect of the deeds nor the presumption as to their
truth ; and his one-third interest was unconditional.

    D. Petition to Enforce No Contest Clause and Motion for
                   Judgment on the Pleadings

       On November 6, 2014, plaintiff filed a petition to enforce
the will’s no contest clause. Plaintiff argues defendant’s response
to the section 850, subdivision (a)(2) petition was a pleading that
contravened the will’s provisions. Plaintiff requests that
defendant’s interest in Ms. Dayan’s estate be deemed forfeited.
Plaintiff also requests defendant be removed as co-executor of the
estate. Defendant objected to plaintiff’s November 6, 2014
petition. Defendant objection argues plaintiff’s petition to enforce




                                 6
the no contest clause should be heard after the section 850,
subdivision (a)(2) petition trial.
       On January 28, 2015, plaintiff moved for judgment on the
pleadings. The judgment on the pleadings motion was premised
on all papers that had been filed. The judgment on the judgment
on the pleadings motion’s synopsis states: “[Defendant] claims a
one-third interest in real property belonging to [Ms. Dayan] that
she bequeathed in her [w]ill to a testamentary trust. [Defendant]
claims that [Ms. Dayan] cannot transfer this one-third interest
into the testamentary trust because of [defendant’s] purported
interest in the property. The [w]ill contains a no contest clause
that provides that if anyone asserts a property interest in any
asset in contravention of the [w]ill, that person forfeits his
interest in the [w]ill as though he predeceased [Ms. Dayan]
without issue. There is no provision in the no contest clause that
limits the claim that constitutes the contest to any invalid claim
or any claim not brought in good faith. After being warned on
numerous occasions of the consequences of pursuing this claim,
[defendant] filed an objection to [the section] 850 petition to
confirm [Ms. Dayan’s] interest in the asset.” According to the
petition, defendant did not have an equitable interest in the
property. The judgment on the pleadings motion asserts, “All
that matters is that a party seeks to invalidate a transfer based
on their claim that they have a property interest in the subject
property. Thus, here, the law and facts compel the forfeiture of
[defendant’s] interest in the estate of [Ms. Dayan].




                                7
                     E. Trial and Final Order

                        1. Trial testimony

       Trial regarding the section 850, subdivision (a)(2) petition
was held on August 24, 2015. Daniel Cheren, an estate planning
attorney, testified on plaintiff’s behalf. Mr. Cheren testified as to
Ms. Dayan’s capacity: “She was always, was even to the last time
that I met her, a very intelligent woman, very gifted woman, a
woman that was very sure of her own mind, sure of her own
desires, understood what her property was.” Mr. Cheren
prepared the 2007 quitclaim deed which transferred Ms. Dayan’s
interest in the property as trustee of the Nathanson Trust to her
as an individual. Mr. Cheren was unaware that defendant had a
one-third interest in the property. Mr. Cheren also prepared the
will. Mr. Cheren testified Ms. Dayan believed she had full
interest in the property. Mr. Cheren also testified, “She was very
clear as to . . . what she wanted to do, who was in her will, who
was out of her will.” Mr. Cheren never looked for any deeds or
the chain of title concerning the property when preparing the
will.
       Defendant testified he never paid or received any money for
his one-third interest in the property. Defendant testified Ms.
Dayan did not want plaintiff to own property. Defendant
testified Ms. Dayan never requested he give up his one-third
interest in the property. Plaintiff testified he owns a boat repair
shop located on the property. His parents helped finance his
business and other costs, including the rent, mortgage, utilities
and repairs. Plaintiff, in exchange, gave his income to his




                                  8
parents. In plaintiff’s view, Ms. Dayan had a very controlling
personality.

          2. Tentative and final statements of decision

       On September 17, 2015, the probate court issued its
tentative statement of decision. The probate court found Mr.
Cheren’s testimony that Ms. Dayan possessed full title to the
property was unpersuasive. The probate court found it was not
plausible that Ms. Dayan would not have remembered defendant
owned a one-third interest in the property. Mr. Cheren admitted
he did no research to determine ownership of the property.
Defendant’s interest was easily discoverable by a simple property
search. During Ms. Dayan’s lifetime, both plaintiff and Ms.
Marantz relinquished title to the property. However, Ms. Dayan
never made any request to defendant to do the same. The
probate court found: “If [Ms. Dayan] wished to have the
entire . . . property transferred for the benefit of [plaintiff], she
would have taken efforts to quiet title against [defendant], or
make a demand that [defendant] relinquish his one third
ownership interest in the . . . property. Since [Ms. Dayan] did not
initiate[] a quiet title or demand [defendant] relinquish
ownership, the court finds that it was [Ms. Dayan’s] intent in
signing the 2009 will for [defendant] to retain his one-third
ownership and the trust prepared for the benefit of [plaintiff] to
receive the remaining two-thirds ownership.”
       At the same time, the probate court also denied plaintiff’s
judgment on the pleadings motion. The probate court ruled it
could not determine, based on the face of the pleadings, whether
defendant’s actions violated the no contest clause. The probate




                                  9
court ruled, “From the face of the [papers], the court cannot
determine if the no contest clause is enforceable or if
[defendant’s] actions triggered the provisions of the no contest
clause.” The probate court ruled additional facts were potentially
necessary in order to judiciously rule on the no contest issue after
a trial or summary judgment motion. The probate court ordered
a further hearing regarding plaintiff’s petition to enforce the no
contest clause. On October 19, 2015, the probate court issued its
final statement of decision and formally denied the section 850,
subdivision (a)(2) petition and the judgment on the pleadings
motion. This appeal followed.

                        III. DISCUSSION

A. The Probate Court Did Not Err by Denying Plaintiff’s Section
               850, Subdivision (a)(2) Petition

        Generally, we interpret written instruments de novo.
(Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-
866; Estate of Powell (2000) 83 Cal.App.4th 1434, 1439-1440; Ike
v. Doolittle (1998) 61 Cal.App.4th 51, 73.) We review the probate
court’s resolution of disputed facts for substantial evidence. (De
Anza Enterprises v. Johnson (2002) 104 Cal.App.4th 1307, 1315;
Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th
624, 632.) Substantial evidence supports the probate court’s
findings.
        The will provided that “all title, rights and interests in
the . . . property” would go to plaintiff’s trust. Ms. Dayan’s intent
was also described in the will, “It is my intention by this Will to
dispose of all of the property of my probate estate.” Thus, a fair




                                 10
reading of Ms. Dayan’s will is she did not intend to convey
property not a part of her probate estate. The will is silent as to
whether Ms. Dayan had full title of the property. The probate
court correctly examined evidence outside of the will to resolve
this issue.
       The probate court found Ms. Dayan intended to convey a
one-third interest in the property to defendant. It is
uncontradicted the August 11, 1983 quitclaim deed transferred
title to Ms. Dayan, Ms. Marantz and defendant as joint tenants
doing business as Dayan and Dayan Enterprises. And the
February 26, 1986 quitclaim deed transferred title in the
property to defendant or Ms. Dayan as trustees under a January
30,1986 agreement. Then the September 17, 1986 quitclaim deed
corrected the February 26, 1986 quitclaim deed. The September
17, 1986 quitclaim deed transferred title as follows: an undivided
one-third interest was conveyed to defendant and Ms. Dayan as
trustees of the Nathanson Trust; Ms. Marantz received an
undivided one-third interest; and defendant received an
undivided one-third interest. The quitclaim deeds relinquished
whatever rights Ms. Dayan may have had in the property at the
time of the September 17, 1986 transfer. (City of Manhattan
Beach v. Superior Court (1996) 13 Cal.4th 232, 239; In re
Marriage of Gioia (2004) 119 Cal.App.4th 272, 281.) A quitclaim
deed operates as a release of a grantor’s interest in the property.
(Buller v. Buller (1944) 62 Cal.App.2d 687, 694-699; Westlake v.
Silva (1942) 49 Cal.App.2d 476, 478.) And, as can be noted, on
September 17, 1986, Ms. Dayan only conveyed a one-third
interest in the property entirely to defendant. In our case, no
subsequently executed quitclaim deed could override or affect the
September 17, 1986 quitclaim deed which conveyed the one-third




                                11
interest to defendant. (Werner v. Graham (1919) 181 Cal. 174,
185; Rosenthal v. Landau (1949) 90 Cal.App.2d 310, 313.) The
legal effect of the September 17, 1986 quitclaim deed is sufficient
to convey the one-third interest in the property to defendant.
Moreover, the language appearing in the September 17, 1986
quitclaim deed demonstrates an intention to convey a one-third
interest to defendant.
       And, the probate court noted Mr. Cheren described Ms.
Dayan as a very intelligent woman with a very smart mind. Mr.
Cheren testified that Ms. Dayan knew exactly what her property
was and who she wanted in and out of the will. Ms. Dayan
executed 3 wills within 13 months, from October 2008 to
November 20, 2009, the date the will currently under
consideration was executed. As evidenced by the quitclaim and
grant deeds, Ms. Dayan had plaintiff and Ms. Marantz return
their interests in the property, but never did the same for
defendant. There is no evidence that Ms. Dayan ever sought to
quiet title nor requested defendant relinquish his one-third
interest in the property. The probate court could reasonably find
Mr. Cheren’s testimony that Ms. Dayan did not intend to give
defendant one-third interest was unpersuasive in light of other
evidence. Furthermore, the under oath inventory and
appraisement, signed by plaintiff and defendant, states Ms.
Dayan’s estate held only a two-thirds interest in the property.
And as to the issue of intent, defendant testified Ms. Dayan did
want plaintiff to have an interest in the property.
       Plaintiff contends the probate court erred by not
considering the no contest clause when interpreting the will to
determine whether defendant had a one-third interest in the
property. To begin with, there is no evidence the trial court




                                12
refused to give any consideration to the no contest clause in
terms of Ms. Dayan’s intent. The no contest clause does not
prove Ms. Dayan did not intend to have defendant own one-third
of the property separate from her probate estate. The no contest
clause’s language does not identify the extent of Ms. Dayan’s
property interests when the will was executed nor those of
defendant. Accordingly, the probate court did not err in denying
plaintiff’s section 850 petition and finding that defendant owned
a one-third interest in the property.

 B. The Order Denying the Judgment on the Pleadings Motion

                         1. Introduction

       Plaintiff argues the probate court should have granted his
judgment on the pleadings motion. This contention raises two
issues. The first issue is defendant argues the order denying
plaintiff’s judgment on the pleadings motion, resolved
contemporaneously with the section 850, subdivision (a)(2)
petition, is not appealable. The second issue is whether
defendant violated the no contest clause when he filed an
opposition to the section 850, subdivision (a)(2) motion. We
conclude the order denying the judgment on the pleadings motion
may be considered in connection with the appeal from the section
850, subdivision (a)(2) issue. In addition, we conclude that the
trial court correctly denied plaintiff’s motion for judgment on the
pleadings.




                                13
                     2. Appealability issue

      Defendant asserts the order denying plaintiff’s judgment on
the pleadings motion is not appealable. Defendant relies on a
body of authority that an order denying a motion for judgment on
the pleadings is not appealable. (Ellerbee v. County of Los
Angeles (2010) 187 Cal.App.4th 1206, 1212-1213; Ernest W.
Hahn, Inc. v. Nort-Cet Corp. (1973) 34 Cal.App.3d 171, 173, fn. 1;
see Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th
446, 452 [denial of motion for judgment on the pleadings may be
reviewed by petition for writ of mandate].)
      However, we agree with plaintiff that we can consider the
merits of his judgment on the pleadings contention pursuant to
Code of Civil Procedure section 906 which states in part, “Upon
an appeal pursuant to Section 904.1 or 904.2, the reviewing court
may review the . . . decision and any intermediate ruling,
proceeding, order or decision which involves the merits or
necessarily affects the judgment or order appealed from or which
substantially affects the rights of a party . . . .” Code of Civil
Procedure section 906 establishes a three-part statutory test for
consideration of “any intermediate” order in connection with an
appeal from an appealable order. First, the intermediate order
must involve the merits of the controversy under appeal. (Lopez
v. Brown (2013) 217 Cal.App.4th 1114, 1133 (Lopez); Abramson v.
Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, 649
(Abramson).) Second, the challenged order in this case, the
decision to deny the judgment on the pleadings motion, must
necessarily affect the appealable order appealed from. (Lopez,
supra, 217 Cal.App.4th at p. 1134; Wallace v. GEICO General Ins.
Co. (2010) 183 Cal.App.4th 1390, 1396, fn. 5 (Wallace);




                               14
Abramson, supra, 115 Cal.App.4th at p. 649.) Third, the order
must substantially affect plaintiff’s rights. (Lopez, supra, 217
Cal.App.4th at p. 1134; Abramson, supra, 115 Cal.App.4th at p.
649; see County of Los Angeles v. City of Los Angeles (1999) 76
Cal.App.4th 1025, 1028.) The parties do not dispute that the
appeal from the order denying the section 850, subdivision (a)(2)
petition is appealable. (Code Civ. Proc., § 904.1, subd. (a)(10); §
1300, subd. (a).)
       Here, the order denying the judgment on the pleadings
motion meets all three Code of Civil Procedure section 906
criteria. As to the first criterion, the controversy’s merits, the
judgment on the pleadings motion involves the dispute over the
property which is the subject of the appeal. At issue is
defendant’s rights to one-third of the property. The probate court
ruled defendant is entitled a one-third interest in the property.
We have the upheld the ruling denying plaintiff’s section 850,
subdivision (a)(2) petition. The judgment on the pleadings
motion is based in part on defendant’s opposition to plaintiff’s
section 850, subdivision (a)(2) petition. Further, had the
judgment on the pleadings motion been granted, defendant would
have no rights in the property because he violated the no contest
clause. Both plaintiff’s section 850, subdivision (a)(2) petition
and judgment on the pleadings motion involve the same core
issue—defendant’s rights to a one-third interest in the property.
And both pleadings involve in material part defendant’s written
opposition to plaintiff’s section 850, subdivision (a)(2) petition.
       As to the second criterion, whether the judgment on the
pleadings motion ruling affects the order denying the section 850,
subdivision (a)(2) petition, the issue is close. In our view, the
order denying the judgment on the pleadings substantially affects




                                15
the order denying plaintiff’s section 850, subdivision (a)(2)
petition. If the judgment on the pleadings motion should have
been granted, then defendant would have no rights to the
property because he violated the no contest clause. Finally, as to
the third criterion, whether the parties’ rights are substantially
affected, the issue is not close. As a result of the judgment on the
pleadings motion ruling, as matters presently stand, defendant is
entitled to a one-third interest in the property. And as to
defendant’s written opposition, it has now been determined the
document itself did not violate the no contest clause thereby
preserving his one-third interest in the property. Thus, we must
consider the merits of the order denying plaintiff’s judgment on
the pleadings motion. (Code Civ. Proc., § 906; Wallace, supra,
183 Cal.App.4th at p. 1396, fn. 5.)

                     3. The no contest clause

       We apply the following standard of review to an order
denying a judgment on the pleadings motion: “Because a motion
for judgment on the pleadings is similar to a general demurrer,
the standard of review is the same. (Ramirez v. USAA Casualty
Ins. Co. (1991) 234 Cal.App.3d 391, 397.) We treat the pleadings
as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. [¶] . . . We
consider evidence outside the pleadings which the trial court
considered without objection. (O’Neil v. General Security Corp.
(1992) 4 Cal.App.4th 587, 594, fn. 1.)” (Baughman v. State of
California (1995) 38 Cal.App.4th 182, 187.)
       The three types of probate court litigation conduct that can
violate a no contest clause are specified in section 21311,




                                 16
subdivision (a): “A no contest clause shall only be enforced
against the following types of contests: [¶] (1) A direct contest
that is brought without probable cause. [¶] (2) A pleading to
challenge a transfer of property on the grounds that it was not
the transferor’s property at the time of the transfer. A no contest
clause shall only be enforced under this paragraph if the no
contest clause expressly provides for that application. [¶] (3)
The filing of a creditor’s claim or prosecution of an action based
on it. A no contest clause shall only be enforced under this
paragraph if the no contest clause expressly provides for that
application.” (See Donkin v. Donkin (2013) 58 Cal.4th 412, 426-
427 (Donkin); Doolittle v. Exchange Bank (2015) 241 Cal.App.4th
529, 539.) A direct contest is defined in section 21310,
subdivision (b): ‘“Direct contest’ means 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.” In determining
Ms. Dayan’s intent, the no contest clause is to be strictly
construed. (§ 21312; Johnson v. Greenelsh (2009) 47 Cal.4th 598,
604.)
       Based on the record before the probate court when it denied
the judgment on the pleadings motion, no violation of the no
contest clause had occurred. First, defendant has not filed a
direct contest to the will within the meaning of section 21311,




                                17
subdivision (a)(1). A direct contest must allege a invalidity of a
protected instrument, in this case Ms. Dayan’s November 20,
2009 will. (§ 21130, subd. (b).) Defendant has not asserted any
portion of Ms. Dayan’s November 20, 2009 will is invalid. His
contention is that he is entitled to a one-third interest in the
property because of the September 17, 1986 quitclaim deed, not
because of any invalidity in Ms. Dayan’s will. (See Donkin,
supra, 58 Cal.4th at pp. 433-434 [a probate pleading which only
seeks an interpretation of a trust instrument and does not seek to
void any part of it is not a contest]; Estate of Strader (2003) 107
Cal.App.4th 996, 1004 [under common law “a petition seeking to
interpret a will does not ordinarily violate a no contest clause.”].)
Here, the gravamen of defendant’s papers is to seek to enforce his
rights under the September 17, 1986 quitclaim deed, not to
invalidate any portion of Ms. Dayan’s will.
      In addition, no challenge to Ms. Dayan’s transfer of the
one-third interest within the meaning of section 21311,
subdivision (a)(2) has occurred. Defendant has not challenged
any transfer of real property because Ms. Dayan lacked the
authority to execute the September 17, 1986 quitclaim deed. And
the no contest clause does not expressly provide such a challenge
is impermissible, a prerequisite to the application of section
21311, subdivision (a)(2). There is no creditors claim at issue as
enumerated in section 21311, subdivision (a)(3). Finally, there is
no merit to defendant’s resulting trust analysis. Thus, based on
the papers before it, the probate court correctly denied plaintiff’s
judgment on the pleadings motion.




                                 18
                      V. DISPOSITION

     The orders under review are affirmed. Defendant, Anthony
M. Nathanson, shall recover his appellate costs from plaintiff,
Ermond J. Nathanson.
                       CERTIFIED FOR PUBLICATION



                       TURNER, P. J.

We concur:



     KRIEGLER, J.



     BAKER, J.




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