Filed 1/19/16 Reese, as Trustee v. Reese CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


DAVID M. REESE, as Trustee, etc.,                                    B264733

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BP150771)
         v.

STEVEN REESE,

         Defendant and Respondent.



         APPEAL from an order of the Superior Court of Los Angeles County, Daniel S.
Murphy, Judge. Affirmed in part and reversed in part with instructions.
         Jay Oberholtzer for Plaintiff and Appellant.
         No appearance for Defendant and Respondent.
                                   I. INTRODUCTION


       Plaintiff, David M. Reese, is the trustee of the Leonard A. Reese Living Trust of
March 23, 2006 (the trust). Plaintiff is Leonard’s son. Leonard had two other sons,
Dennis A. and Steven E. Reese 1. Steven is the administrator of Leonard’s estate.
Plaintiff filed a petition seeking to confirm that certain real property was owned by the
trust. Steven objected to plaintiff’s petition. The probate court found in plaintiff’s favor
and ruled the real property was owned by the trust. However, the probate court further
ruled that the trust did not address how the real property would be distributed. The
probate court ruled the real property should pass to Leonard’s intestate estate because
there was no will. In his capacity as trustee, plaintiff appeals from a final order following
a brief trial based on the agreed-to submission of documents.
       Plaintiff does not appeal from the probate court’s finding that the trust owned the
real property. However, plaintiff asserts the probate court erred by ruling on issues not
before it. We conclude the probate court erred because it acted in excess of the issues
posited by plaintiff’s petition.


                                   II. BACKGROUND


                        A. The Trust, the Grant Deed, and the Will


       On October 29, 2001, Leonard executed a trust transfer deed. He transferred real
property located at 3763 Iroquois, in Long Beach, California (the Iroquois property) to
himself as trustee. The trust transfer deed was notarized. On October 29, 2001, Leonard
also executed a living trust. The trust superseded the October 29, 2001 trust.
       On March 28, 2006, Leonard executed a “Declaration of Trust,” which is the trust
at issue here. In the trust, Leonard named himself as the primary trustee. Plaintiff was

1
      Several family members share the same last name. For clarity, we will refer to
them by their first name. No disrespect is intended.

                                              2
named as successor trustee. Article Two, section A of the trust discusses the plan of
distribution upon Leonard’s death: “2. My natural children are DENNIS A. REESE
AND STEVEN E. REESE AND DAVID M. REESE. Their share of any inheritance or
gift is set forth below. . . . [¶] 3. I direct that my successor trustee divide my personal
effects, including automobiles, boats, sporting equipment, jewelry, furniture, furnishings,
china, glassware, silver and household equipment . . . among the following named
beneficiaries . . . . The named beneficiaries for purposes of this paragraph are: DAVID
REESE.” Section C of the trust discusses disinheritance in specific detail (emphasis
original): “I have consciously not named DENNIS A. REESE AND STEVEN E under
the terms of this document. They shall take nothing under the terms of this trust and shall
not share in my estate whatsoever.”
       On March 28, 2006, Leonard also signed a “Last Will and Testament.” However,
the will was witnessed by only one other person. Plaintiff did not offer the will into
probate. Leonard died November 20, 2010.


                                      B. The Petition


       On April 1, 2014, plaintiff filed a petition to confirm the trust’s ownership of the
Iroquois property pursuant to Probate Code sections 850, subdivision (a)(3)(A) and
17200.1. Plaintiff relied on: the transfer trust deed; Schedule A of the trust which
provides that “All Real Estate” is an asset of the trust; and the “Comprehensive Transfer
Document” which provides that “real estate wherever located” is transferred to the trust.
On June 10, 2014, plaintiff supplemented his petition. Plaintiff’s first supplement to the
petition states that the disposition of the Iroquois property would be the subject of a
second petition.
       Steven filed objections to the petition. He asserted the trust transfer deed failed to
name the trust to which the real property would be transferred. Steven contended the
failure to name the trust rendered the transfer ineffective.



                                              3
                         C. Statement of Decision and Final Order


       On February 9, 2015, the probate court heard the matter. Without objection, the
parties submitted the documents as evidence and called no witnesses. On February 23,
2015, following the trial, the probate court issued its statement of decision. The probate
court found the Iroquois property was an asset of the trust. The probate court cited Estate
of Heggstad (1993) 16 Cal.App.4th 943, 947-950. (See Ukkestad v. RBS Asset Finance,
Inc. (2015) 235 Cal.App.4th 156, 160-161 [requirements for inclusion of property in
trust].) This issue is not before us.
       The probate court then found the Iroquois property had failed to transfer. The
probate court found that the trust had no residuary clause and did not specify how to
distribute the real property. The probate court ruled there was a failure to transfer under
Probate Code section 21111, subdivision (a)(3). The probate court ruled the Iroquois
property should be transferred to Leonard’s estate. Because there was no will, the
probate court decided the Iroquois property would pass by intestacy.
       On April 9, 2015, the probate court issued its final order, which is labeled a
judgment. Parts six and seven of the order state: “6. Since the Declaration of Trust does
not address how real property will be distributed [a]nd does not have a residuary clause,
the Iroquois property is transferred to the decedent’s estate, Los Angeles Superior Court,
Central District, case number BP 145751. [¶] 7. The Iroquois property passes by
intestacy.” This appeal followed.


                                        III. DISCUSSION


       Plaintiff appeals only parts six and seven of the probate court’s order. Because the
matter was submitted on the donative documents and the petition, we apply the de novo
standard of review. (Estate of Powell (2000) 83 Cal.App.4th 1434, 1439-1440; Ike v.
Doolittle (1998) 61 Cal.App.4th 51, 73.) Plaintiff asserts the probate court ruled in
excess of the petition. We agree.

                                               4
       Our Supreme Court has held: “A party is entitled to ‘any and all relief which may
be appropriate under the scope of his pleadings and within the facts alleged and proved,
irrespective of the theory upon which they may be alleged.’ [Citations.]” (Estrin v.
Superior Court (1939) 14 Cal.2d 670, 678 [emphasis added]; In re Marriage of Neal
(1979) 92 Cal.App.3d 834, 847; see 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction,
§ 291, p. 901 [“Irrespective of whether the complaint states a cause of action, it is error to
give a remedy or relief entirely outside the issues raised by the pleadings.”]; 7 Witkin,
Cal. Procedure (5th ed. 2008) Judgment, § 29, p. 569 [“Obviously, a judgment must be
within the issues raised by the pleadings or at the trial.”].) Here, plaintiff did not seek a
determination as to how the Iroquois property should be distributed. Plaintiff sought only
a determination as to whether the Iroquois property is a part of the trust. The probate
court had no authority to grant relief favorable to Steven, who filed no petition seeking
any relief. We express no opinion as to how the Iroquois property should be distributed.


                                     IV. DISPOSITION


       The April 9, 2015 final order is reversed only as to parts six and seven. The order
is otherwise affirmed. All parties are to bear their own costs on appeal.
                             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                             TURNER, P. J.



We concur:

              BAKER, J.                     KUMAR, J. *



*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                               5
