Filed 9/12/13 Caldwell v. Regents CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


JAMES E. CALDWELL, JR., et al.,                                      B243567

         Plaintiffs and Respondents,                                 (Los Angeles County
                                                                     Super. Ct. No. SC116946)
         v.

THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County. Lisa Hart
Cole, Judge. Affirmed.


         Reed Smith, Paul D. Fogel, Dennis Peter Maio; Manatt, Phelps & Phillips, Craig J.
de Recat and David T. Moran for Defendant and Appellant.


         Law Offices of John R. Walton, John R. Walton and Walter W. Moore for
Plaintiffs and Respondents.




                                                       ******
       Pursuant to a motion brought by plaintiffs and respondents James E. Caldwell, Jr.,
and Hannah C. Sowerwine, individually and as trustees of the Hannah Locke Carter
Trust, and Anne Caldwell and Jonathan A. Caldwell, individually (the Caldwells), the
trial court issued a preliminary injunction that prevented defendant and appellant The
Regents of the University of California from selling a Japanese garden it had agreed to
retain in perpetuity.
       We affirm. The trial court acted within its discretion in determining the Caldwells
presented a reasonable probability of prevailing on the merits on their breach of contract
and related claims.
                  FACTUAL AND PROCEDURAL BACKGROUND
       The Hannah Carter Japanese Garden.
       The one-acre Hannah Carter Japanese Garden (Garden) is located on Bellagio
Road in Bel Air. Beginning in 1959, it was built over the course of two years and
modeled after the gardens of Kyoto. Nagao Sakurai, a world-renowned Japanese
landscape architect, designed the Garden. It is recognized as one of the finest examples
of a Japanese garden in North America.
       At the time of its development, the Garden was owned by Gordon and Verabelle
Guiberson; they owned an adjacent residence (Residence) as well.
       Agreements Concerning the Garden and Residence.
       Edward Carter (Carter) was a Regent with appellant from 1952 to 1988. In
December 1964, appellant and Carter entered into an agreement (1964 Agreement) to
facilitate appellant’s goal of acquiring the Guibersons’ Garden and Residence. Carter
agreed to assist appellant subject to certain “reservations and conditions” set forth in the
1964 Agreement. Simultaneously with the 1964 Agreement, appellant agreed to enter
into an escrow to purchase the Garden directly from the Guibersons and Carter agreed to
enter into an escrow for the direct purchase of the Residence.1 In consideration of those
mutual agreements, the parties further agreed that either during his lifetime or upon his


1      Appellant alleged that Carter funded the Garden purchase through a donation.

                                              2
death Carter would give the Residence to appellant, reserving for himself a life estate and
the ability of his wife Hannah Carter (Hannah)2 to live in the Residence for two years
after his death; the restrictions imposed on the entire parcel by a recorded deed from
Pacific Southwest Savings and Trust (Pacific Deed) would remain applicable
notwithstanding the separation of the parcel; appellant would accept the Residence
subject to the restrictions in the Pacific Deed and the Residence would remain for use
solely as a private residence for the chief administrative officer of the University of
California or distinguished guests; and if appellant sold the Residence it would be sold
with the Garden as a private residence.
       In accordance with the 1964 Agreement, the Guibersons executed a grant deed in
favor of Carter for the Residence and in favor of appellant for the Garden.3 The grant
deed for the Garden was expressly subject to the conditions in the Pacific Deed and
subject to “the additional covenant on the part of the Grantee to maintain the existing
Japanese Garden located on the above described property in good condition and repair
and in a manner consistent with the use of such Garden for purposes normally associated
with its use in conjunction with a private residence, which covenant shall be deemed to
be a covenant running with the land . . . .”
       In 1971, Carter gave the Residence to appellant, reserving a life estate for himself.
Then in 1982, the parties executed an amendment to the 1964 Agreement (1982
Amendment). Because appellant determined it did not desire to use the Residence for the
Chancellor or distinguished guests, the parties “decided upon the appropriate uses of the
proceeds of sale of the residence and deletion of the requirement that the University sell
the garden portion. The University will agree to retain the garden portion in perpetuity
and its Board of Regents has acted to name the garden the Hannah Carter Japanese
Garden.” Carter desired to honor Hannah in naming the Garden after her. The covenants
in the 1982 Amendment retained Hannah’s ability to rent the Residence for up to two

2      We use first names for convenience only; no disrespect is intended.

3      The record does not contain Carter’s grant deed or the Pacific Deed.

                                               3
years after Carter’s death and the restrictions in the Pacific Deed. The covenants further
provided that appellant would, after Hannah’s occupancy, sell the Residence for private
use and retain the Garden in perpetuity as the Hannah Carter Japanese Garden. The
manner in which the proceeds were to be spent was specified in the following covenant,
which included the establishment of several endowments for specific purposes identified
in order of priority. The first priority was “[t]o establish an endowment of $500,000, the
income to be used in perpetuity for the maintenance and improvement of the Hannah
Carter Japanese Garden.”
       Carter passed away in 1996. By 1999, Hannah had occupied the Residence for
two years and a second amendment to the 1964 Agreement (1999 Amendment) gave her
the right to rent the residence for an additional three years with an option to renew. The
1999 Amendment—entered into by appellant and Hannah—contained recitals that
restated the provisions of the 1964 Agreement and the 1982 Amendment, including
appellant’s agreement that it would retain the Garden in perpetuity. The next section of
the 1999 Amendment was entitled “Covenants,” and the first covenant incorporated all
recitals by reference. The second covenant gave Hannah her right to rent the Residence
for the extended period. The third covenant provided appellant with the option either to
keep or sell the Residence once Hannah’s occupancy period ended. According to the
fourth covenant, if appellant sold the Residence, it was bound to use the proceeds to fund
the endowments specified in the 1982 Amendment. In the event appellant elected to
retain the Residence, the 1999 Amendment obligated it to identify funding in an amount
equal to the appraised value of the Residence and to provide that funding in the same
order of priority specified in the 1982 Amendment. The 1999 Amendment modified
certain endowment amounts, but the Garden endowment remained the same in amount
and priority. If the Residence’s appraised value was insufficient to fund the entire
amount required for all endowments, appellant had no obligation to make up the
difference. The final covenant of the 1999 Amendment provided that it superseded the
1982 Amendment in its entirety.



                                             4
       Appellant’s Effort to Sell the Garden.
       The Caldwells are Hannah’s children. After Hannah passed away in April 2009,
the Chancellor of the University of California, Los Angeles, sent a letter to Hannah’s
daughter Anne Caldwell in May 2009, assuring her that her mother’s “name and legacy
will live on through the Hannah Carter Japanese Garden, a beautiful reminder of her
gracious and giving spirit.” Neither the Chancellor nor anyone else on appellant’s behalf
notified the Caldwells of an intent to sell the Garden.
       Approximately one year later, in July 2010, appellant filed a “Petition to Modify
Trust” in probate court in Alameda County, seeking authorization to sell the Garden “in
deviation from an agreement with the donor who funded its purchase.” Appellant alleged
“that changed circumstances have made its continued ownership and maintenance of the
Garden impracticable; and, in addition, that continued operation of the Garden would
thwart the broader charitable intentions of Carter, who wanted the proceeds of his gift to
support the academic mission of the University.” Appellant also complained about
inadequate parking, having learned in 1989 that a former parking lot was on a neighbor’s
property; explained that the funds Carter allocated to the endowment for Garden
maintenance were inadequate to meet annual expenses; noted that the Garden served no
research or instructional purpose; and added that visitors had declined to approximately
2,000 per year. Alleging that it held the Garden in charitable trust from Carter, appellant
served the petition on the Attorney General as the representative of all charitable trust
beneficiaries and noted the Attorney General’s lack of opposition. The Caldwells were
not served with and did not otherwise receive notice of the petition.
       In September 2010, the trial court granted the petition (Probate Order), giving
appellant the discretion to sell the Garden and eliminating its obligation to fund the
Garden endowment. Thereafter, appellant listed the Garden for sale at a price of




                                              5
$5.7 million. The bid specifications contained no requirement that the Garden be
preserved or maintained. The Residence was also listed for sale for $9 million.4
       Preliminary Injunction Prohibiting Sale.
       After learning of the proposed sale, in May 2012 the Caldwells filed a complaint
against appellant alleging causes of action for declaratory relief, breach of contract and
breach of the implied covenant of good faith and fair dealing. In their complaint the
Caldwells indicated they sought “preliminary and permanent injunctive relief to compel
specific performance by the Regents of their contractual obligation to maintain the
Hannah Carter Japanese Garden, and to spend the sale proceeds from the residence
portion in accordance with the itemized list in the Amended Contract.” They applied
ex parte for a temporary restraining order to prevent appellant from selling the Garden
and require that it be maintained intact. The trial court denied the application, but
permitted the Caldwells to seek a preliminary injunction via a noticed motion.
       Accordingly, in June 2012 the Caldwells moved for a preliminary injunction,
again seeking to prohibit the sale of the Garden and requiring appellant to maintain it
during the pendency of the action. In support of their motion they submitted their own
declarations as well as those from a landscape architect focused on preservation issues
and a licensed real estate broker, and they sought judicial notice of the underlying
agreements and the pleadings and Probate Order from Alameda County.
       Appellant opposed the motion. It argued the Caldwells were not likely to prevail
on the merits because their complaint was an impermissible collateral attack on the
Probate Order and they lacked standing to challenge or enforce the charitable trust. It
further argued there was no need to preserve the status quo and the balance of hardships
weighed in its favor. In support of its opposition it submitted a declaration from the
director of Campus Service Enterprises and offered many of the same exhibits attached to
the Caldwells’ request for judicial notice, adding correspondence and a transcript from

4     As the Caldwells point out, the $9 million listing price exceeded the $2.7 million
needed to fund all the endowments initially specified by Carter and would have yielded
more than $6 million that could be used for Garden maintenance and/or other purposes.

                                              6
the hearing on the temporary restraining order. It also sought judicial notice of pleadings
and other documents filed in connection with the Probate Order. Finally, it filed
evidentiary objections to portions of the declarations offered by the Caldwells. In reply,
the Caldwells emphasized the contractual nature of the dispute. They also filed
evidentiary objections.
       Following the initial hearing on the motion, the trial court allowed supplemental
briefing on the issue of whether appellant is a public entity or a charitable institution. For
the renewed hearing in July 2012, the trial court issued a tentative ruling granting the
motion and ultimately adopted the tentative ruling as its final order. It ruled the
Caldwells met their burden to show a probability of prevailing, a balance of hardships in
their favor and irreparable harm in the absence of an injunction. With respect to the first
element, the trial court ruled: “Plaintiffs sufficiently establish a reasonable probability of
prevailing on the merits of the action based on their characterization of the transaction as
an enforceable contractual exchange of consideration between UCLA and Edward Carter.
In exchange for conveyance of the residential parcel, Carter accepted UCLA’s promise to
keep the Garden Parcel as the Hannah Carter Japanese Gardens in perpetuity. Plaintiffs
also establish that UCLA has breached the 1982 Amendment by removing certain items
of artwork and sculpture from the Gardens and by taking steps to sell the Garden Parcel
entirely, including obtaining a probate court judgment allowing them to sell the Garden
Parcel.” The trial court expressly rejected appellant’s arguments that enforcing their
contractual obligation amounted to an unreasonable restraint on alienation, that the
Caldwells’ lawsuit was an impermissible collateral attack and that the Caldwells lacked
standing. Finally, it sustained in part and overruled in part both parties’ evidentiary
objections.
       The trial court initially entered a temporary restraining order and, following the
Caldwells posting an undertaking, entered a preliminary injunction, restraining appellant
from transferring ownership of the Garden and directing it to maintain the Garden. This
appeal followed.



                                              7
                                        DISCUSSION
       Appellant contends the trial court abused its discretion in granting the preliminary
injunction, challenging only the determination that the Caldwells established a
probability of prevailing on the merits of their claims. It asserts the trial court
mischaracterized the transaction as a contract rather than a charitable trust and argues the
trial court erred in rejecting its claims concerning restraint on alienation, standing and
collateral attack. We find no merit to appellant’s contentions.
I.     Standard of Review.
       In determining whether to issue a preliminary injunction, courts evaluate two
interrelated factors: “The first is the likelihood that the plaintiff will prevail on the merits
at trial. The second is the interim harm that the plaintiff is likely to sustain if the
injunction were denied as compared to the harm that the defendant is likely to suffer if
the preliminary injunction were issued. [Citations.]” (IT Corp. v. County of Imperial
(1983) 35 Cal.3d 63, 69–70.) “The trial court’s determination must be guided by a ‘mix’
of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one,
the less must be shown on the other to support an injunction. [Citation.]” (Butt v. State
of California (1992) 4 Cal.4th 668, 678.) Nonetheless, “[a] trial court may not grant a
preliminary injunction, regardless of the balance of interim harm, unless there is some
possibility that the plaintiff would ultimately prevail on the merits of the claim.
[Citation.]” (Ibid.)
       We review an order granting a preliminary injunction for an abuse of discretion,
determining whether the trial court acted within its discretion in evaluating the two
interrelated factors. (IT Corp. v. County of Imperial, supra, 35 Cal.3d at pp. 69–70;
Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1299.) “‘The
authorities are numerous and uniform to the effect that the granting or denial of a
preliminary injunction on a verified complaint, together with oral testimony or affidavits,
even though the evidence with respect to the absolute right therefor may be conflicting,
rests in the sound discretion of the trial court, and that the order may not be interfered
with on appeal, except for an abuse of discretion. [Citations.]’ [¶] A trial court will be

                                               8
found to have abused its discretion only when it has ‘“exceeded the bounds of reason or
contravened the uncontradicted evidence.”’ [Citations.] Further, the burden rests with
the party challenging the injunction to make a clear showing of an abuse of discretion.
[Citations.]” (IT Corp. v. County of Imperial, supra, at p. 69; accord, Alliant Ins.
Services, Inc. v. Gaddy, supra, at p. 1300; Grothe v. Cortlandt Corp. (1992) 11
Cal.App.4th 1313, 1316–1317.)
II.    The Trial Court Properly Exercised Its Discretion in Granting a Preliminary
Injunction.
       In a seven-page written order, the trial court ruled the Caldwells established a
reasonable likelihood of prevailing on the merits. It concluded that appellant’s obligation
to maintain the Garden was consideration given as part of a bargained-for exchange.5
More specifically, it ruled that even if Carter’s promise in the 1964 Agreement to
purchase and give the Residence to appellant could be characterized as giving rise to a
gift or a charitable trust, the 1982 Amendment changed the nature of the transaction by
requiring appellant to provide consideration in exchange for Carter’s conveyance of the
Residence and agreement to change the restrictions in the 1964 Agreement. The trial
court determined the evidence showed the parties entered into an enforceable contractual
exchange of consideration, which appellant breached by attempting to sell the Garden.
       A.     The Caldwells Demonstrated a Probability of Prevailing on the Merits.
       The linchpin of the trial court’s conclusion was the finding that the Caldwells had
established appellants’ promise to maintain the Garden was contractual in nature. Under
basic principles of law, a contract is a bargained-for exchange. (Bard v. Kent (1942) 19
Cal.2d 449, 452.) As codified in Civil Code section 1550, “It is essential to the existence
of a contract that there should be: [¶] . . . [¶] 4. A sufficient cause or consideration.”
Civil Code section 1605 elaborates: “Any benefit conferred, or agreed to be conferred,


5      It further concluded they demonstrated they would suffer irreparable harm if an
injunction did not issue, and that the balance of hardships weighed in their favor. Those
findings are not challenged on appeal and we therefore accept them as true. (See City of
Merced v. American Motorists Ins. Co. (2005) 126 Cal.App.4th 1316, 1322–1323.)

                                              9
upon the promisor, by any other person, to which the promisor is not lawfully entitled, or
any prejudice suffered, or agreed to be suffered, by such person, other than such as he is
at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a
good consideration for a promise.” (Accord, Jara v. Suprema Meats, Inc. (2004) 121
Cal.App.4th 1238, 1249 [“‘To constitute consideration, a performance or a return
promise must be bargained for. . . . A performance or return promise is bargained for if it
is sought by the promisor in exchange for his promise and is given by the promisee in
exchange for that promise’”]; Estate of Bray (1964) 230 Cal.App.2d 136, 141
[“Consideration may be either (1) a benefit conferred or agreed to be conferred upon the
promisor or some other person; or (2) a detriment suffered or agreed to be suffered by the
promisee or some other person”].)
       We agree with the trial court that the 1964 Agreement and its two amendments
demonstrated a reasonable probability the Caldwells could show appellant’s “obligation
to maintain the Garden Parcel in perpetuity as a Japanese garden named Hannah Carter
Japanese Garden was bargained for consideration, without which no exchange would
have occurred.” Initially, the 1964 Agreement contained no restrictions on the use of the
Garden beyond those that already existed via the Pacific Deed. Instead, with the
exception of appellant’s agreement to sell the Residence and Garden together in the event
of sale, the mutual promises concerned only the Residence—Carter promised to acquire
and later give the Residence to appellant, while appellant promised to permit Carter and
later his surviving spouse to reside there and thereafter to utilize the Residence for the
chief administrative officer or distinguished guests. In accordance with his initial
promise, in 1971 Carter conveyed title to the Residence to appellant, reserving a life
estate for himself.
       The 1982 Amendment expressly superseded the 1964 Agreement and included a
different set of promises supported by new consideration. (See Gardner v. Shreve (1949)
89 Cal.App.2d 804, 808 [“Normally any agreement to rescind or modify an existing
bilateral relation finds sufficient consideration in the prior rights of the parties which are
surrendered”]; see also Johnson v. Holmes Tuttle Lincoln-Mercury, Inc. (1958) 160

                                              10
Cal.App.2d 290, 295 [“Mutual promises constitute consideration”].) Carter agreed to
eliminate the requirements that the Residence be used for specific purposes after his and
Hannah’s tenancy and that the Residence and Garden be sold together. Instead, appellant
was permitted to retain the Garden on the basis of promises that it would retain it in
perpetuity in Hannah’s name and use the proceeds from the sale of the Residence in a
specified manner, including for the maintenance and care of the Garden.6 Thereafter,
although the 1999 Amendment expressly superseded the 1982 Amendment, in it
appellant contracted with Hannah to maintain the Garden and received discretion to keep
the Residence and provide alternate funding for the endowments.
       On the basis of the exchange of mutual promises and evidence that appellant
attempted to discontinue the Garden’s maintenance, the trial court properly concluded the
Caldwells demonstrated a reasonable probability of prevailing on their claims.
Moreover, the trial court acted within its discretion in rejecting appellant’s efforts to
characterize its obligation as something other than a bargained-for exchange.
       Appellant maintains the Residence and Garden were a gift from Carter designed to
be held in charitable trust to promote the academic mission of the University of
California. “‘A charitable trust is a fiduciary relationship with respect to property arising
as a result of a manifestation of an intention to create it, and subjecting the person by
whom the property is held to equitable duties to deal with the property for a charitable


6       The obligation to maintain the Garden in its existing state as a Japanese garden
was a covenant running with the land provided in the deed from the Guibersons. We note
that “[t]here is general support in the California case law for the proposition that
consideration cannot consist of the promise to perform a preexisting duty owed to a third
person.” (California Grocers Assn. v. Bank of America (1994) 22 Cal.App.4th 205, 219.)
Nonetheless, where a party’s bargained-for performance includes something that is in
addition to or different from the requirements of the preexisting duty, the law of
consideration is satisfied even though the agreed consideration consists almost wholly of
a performance that is already required. (House v. Lala (1963) 214 Cal.App.2d 238, 243;
Bailey v. Breetwor (1962) 206 Cal.App.2d 287, 292.) Here, the 1982 Amendment
contained requirements beyond those provided in the deed, including the obligation to
name the Garden after Hannah and to provide assets for an endowment that would fund
its maintenance. Thus, there was sufficient consideration.

                                              11
purpose.’ [Citations.] The elements essential to its creation are a proper manifestation by
the settlor of an intention to create a trust [citation], a trust res [citations], and a charitable
purpose [citations] promoting the welfare of mankind or the public at large, of a
community, or of some other class of persons which is indefinite as to numbers and
individual identities [citations].” (City of Palm Springs v. Living Desert Reserve (1999)
70 Cal.App.4th 613, 620–621, fn. omitted.)
       As the trial court acknowledged, the evidence offered below failed to support the
requisite elements. In particular, the 1964 Agreement and its amendments contained no
language suggesting an intent to create a trust. Moreover, the Caldwells offered into
evidence the Hannah Locke Carter Trust, thus demonstrating Hannah’s awareness of how
to manifest such intent. Further, there was no evidence showing that the parties treated
the transactions involving the Residence or Garden as giving rise to a charitable trust.
The court in Van de Kamp v. Gumbiner (1990) 221 Cal.App.3d 1260, 1271, explained
that, by statute, “California requires charitable trusts to register with the Attorney
General’s office, and to file periodic reports concerning the administration of assets held
in trust. [Citations.] The Attorney General may investigate charitable organizations to
verify that the purposes of the trust are being carried out [citation] and can enforce
compliance with the statute by instituting judicial proceedings [citation]. The Uniform
Act provides that the Attorney General’s participation is required in any suit to modify or
to terminate a charitable trust. [Citation.]” Appellant offered no evidence to show it had
registered a trust with the Attorney General’s office, filed periodic reports or involved the
Attorney General in any of the modifications concerning its Residence and Garden
obligations before it filed suit in Alameda County.
       Notwithstanding its failure to offer evidence showing it satisfied any of the
statutory requirements associated with charitable trusts, appellant argues that the
conditional nature of Carter’s gift warrants the presumption it was given in charitable
trust. (See City of Palm Springs v. Living Desert Reserve, supra, 70 Cal.App.4th at
p. 622 [“Property given ‘upon condition’ that it be applied to certain charitable purposes
is especially likely to be construed as having been given in a charitable trust”]; see also

                                                12
L. B. Research and Educ. Foundation v. UCLA Foundation (2005) 130 Cal.App.4th 171,
178 [“‘Courts favor the construction of a gift as a trust over a conditional gift’”].) But as
the trial court explained, evidence concerning the structure of the transaction here
overcame any presumption of a charitable trust. In the authority cited by appellant,
donors were attempting to enforce a restriction on donated property, whereas here the
Caldwells were “attempting to enforce a promise the Regents made as to its own
property, the Garden Parcel, in exchange for the donation or conveyance of the
Residential Parcel.” The trial court found this factual distinction significant: “When a
donor imposes restrictions on a gift, the source of that power is the bundle of rights he
possesses as owner of the property to be gift[ed]. The restriction itself is not part of an
exchange under those circumstances. However, here, the alleged donation was the
Residential Parcel, not the Garden Parcel. At the time of the 1982 Amendment, Edward
Carter had no legal right to impose any restrictions on the Garden Parcel. As such, the
1982 Amendment’s requirement that UCLA retain the Garden Parcel in perpetuity as the
Hannah Carter Japanese Gardens was not a ‘condition,’ ‘limitation,’ or ‘restriction’
rooted in Edward Carter’s rights in his own property, the Residential Parcel. It was
instead a benefit Edward Carter bargained for and extracted from UCLA’s bundle of
rights in the Garden Parcel.” We agree that the conditional nature of the transaction here
did not support any presumption a charitable trust was formed.
       Lastly, we are unpersuaded by appellant’s public policy argument that the
conclusion this was a bargained-for exchange instead of a charitable gift will frustrate or
discourage future giving. Appellant failed to provide any evidence to support its
argument. Beyond offering evidence to show that most of its gifts are restricted, it
offered no evidence to show how enforcing the restriction contained in the 1982
Amendment and 1999 Amendment would deter other forms of charitable giving. Further,
the court in County of Solano v. Handlery (2007) 155 Cal.App.4th 566 cited two public
policy considerations in support of the enforcement of bargained-for restrictions, noting
“that if courts were to permit public entities to accept from donors gifts of property
subject to restrictions on the property’s use, and then later jettison those restrictions on

                                              13
their own whim, donors would be discouraged from making such gifts in the future,” and
citing the general “‘maxim[] of equity . . . that “[h]e who takes the benefit must bear the
burden.” [Citation.]’” (Id. at p. 577.) Appellant’s abstract concern fails to overcome the
evidence demonstrating the contractual nature of its transactions with Carter and Hannah.
        B.     The Trial Court Acted Within Its Discretion to Conclude Appellant’s
Other Arguments Did Not Undermine the Caldwells’ Showing.
        Below and again on appeal, appellant raised three arguments in an effort to show
that the Caldwells could not establish a probability of prevailing. We address each in
turn.
        Appellant first contends the requirement that it retain the Garden amounts to a
restraint on alienation that is void and therefore cannot be enforced. “Civil Code
section 711 provides: ‘Conditions restraining alienation, when repugnant to the interest
created, are void.’ It is well settled that this rule is not absolute in its application, but
forbids only unreasonable restraints on alienation. [Citations.] Reasonableness is
determined by comparing the justification for a particular restraint on alienation with the
quantum of restraint actually imposed by it. ‘[T]he greater the quantum of restraint that
results from enforcement of a given clause, the greater must be the justification for that
enforcement.’ [Citation.]” (Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 498–
499; accord, Alfaro v. Community Housing Improvement System & Planning Assn., Inc.
(2009) 171 Cal.App.4th 1356, 1376.) The trial court ruled there was a reasonable
possibility that the restriction would not be considered unreasonable, given “that the
restraint was part of a bargained for exchange, that it is not inimical to any public policy
and serves the public by preserving a unique garden.” It noted that any assessment of
reasonableness would involve a fact intensive inquiry. Appellant maintains that the
restriction should have been deemed void as a matter of law given that it owned the
Garden outright. California law is to the contrary: “[C]onditions restricting land use
have been upheld by the California courts on numerous occasions even though they
hamper, and often completely impede, alienation.” (Mountain Brow Lodge, I.O.O.F. v.
Toscano (1967) 257 Cal.App.2d 22, 25–26.)

                                               14
       Second, appellant asserts that the Caldwells lack standing to enforce the terms of
the 1982 Amendment or the 1999 Amendment. But its position is premised on the notion
that the Garden was held in charitable trust. (See Patton v. Sherwood (2007) 152
Cal.App.4th 339, 342 [“settlor of a charitable trust who retains no reversionary interest in
the trust property lacks standing to bring an action to enforce the trust independently of
the Attorney General”].) The trial court acted within its discretion to conclude the
evidence supporting the Caldwells’ characterization of the dispute as contractual in
nature likewise established their standing to sue as Hannah’s successors in interest and
trustees of the Hannah Locke Carter Trust.7 (See Code Civ. Proc., § 377.30 [an action on
surviving claims “may be commenced by the decedent’s personal representative or, if
none, by the decedent’s successor in interest”]; see also Estate of Bowles (2008) 169
Cal.App.4th 684, 691 [“As a general rule, the trustee is the real party in interest with
standing to sue and defend on the trust’s behalf”].)
       Finally, appellant contends that the Caldwells’ action amounts to an unlawful
collateral attack on the Probate Order. Appellant’s argument is contingent on its
characterization of the Garden as a charitable trust—a characterization unsupported by
the evidence. On the basis of the evidence establishing the contractual nature of the
exchange, the trial court acted within its discretion to determine the Caldwells
demonstrated a probability of successfully attacking the Probate Order on the ground the
probate court lacked jurisdiction. “Courts generally refer to jurisdiction over the parties
and subject matter in any action as ‘fundamental jurisdiction,’ and where this is lacking
there is an entire absence of power to hear or determine the case. [Citation.] Under such
circumstances, ‘an ensuing judgment is void, and “thus vulnerable to direct or collateral
attack at any time.”’ [Citation.]” (County of San Diego v. Gorham (2010) 186



7      In any event, the Caldwells would have standing even if the transaction were
characterized as a charitable trust. (See Holt v. College of Osteopathic Physicians and
Surgeons (1964) 61 Cal.2d 750, 753 [“the Attorney General does not have exclusive
power to enforce a charitable trust and that a trustee or other person having a sufficient
special interest may also bring an action for this purpose”].)

                                             15
Cal.App.4th 1215, 1225.) As the trial court reasoned, “the probate court’s jurisdiction
was based entirely on the Regents[’] claim that the Residential and Garden Parcels were
held in a charitable trust and the restriction regarding the Garden Parcel was a restriction
on the trust res. As discussed above, Plaintiffs sufficiently establish the exchange was
not a gift, it did not give rise to a charitable trust and even if there were a charitable trust,
it would only apply to the donated property, which is the Residential Parcel. The probate
court therefore had no subject matter jurisdiction to release the Regents from its
contractual obligation under the 1982 Amendment.”
       Alternatively, the trial court noted that even under appellant’s characterization of
the transaction, the Probate Order was subject to collateral attack for lack of notice.
Probate Code section 17203 requires that notice of certain proceedings, including a
petition to modify a trust, be provided to a number of specified persons, including
“(b) . . . any person, other than a trustee or beneficiary, whose right, title, or interest
would be affected by the petition,” and “(c) . . . (1) [e]ach heir and devisee of the
decedent, and all persons named as executors of the will of the decedent, so far as known
to the petitioner.” The evidence was undisputed that the Caldwells had an interest in the
Garden as Hannah’s heirs and the trustees of her trust, and that they did not receive notice
of the probate court proceedings. “[W]here notice is required to be given and is not
given, the resultant order is void and may be collaterally attacked by anyone at any time.
[Citation.]” (Estate of Sigourney (2001) 93 Cal.App.4th 593, 601.) Accordingly, the
Caldwells also demonstrated a probability of successfully attacking the Probate Order for
appellant’s failure to comply with Probate Code section 17203.




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                                        DISPOSITION
       The order granting a preliminary injunction is affirmed. The Caldwells are
entitled to their costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           _____________________, J. *
                                                 FERNS
We concur:




____________________________, P. J.
      BOREN


____________________________, J.
      CHAVEZ




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

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