Filed 3/4/14 Vaughn v. Mahurin CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


LYNN VAUGHAN et al.,

     Plaintiffs and Appellants,                                        G048636

         v.                                                            (Super. Ct. No. 30-2011-00478374)

JOAN N. MAHURIN, as Trustee, etc.,                                     OPINION

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County, Mary
Fingal Schulte, Judge. Affirmed.
                   Mollis & Mollis and Charles A. Mollis for Plaintiffs and Appellants.
                   Law Office of Susan D. Stein and Susan D. Stein for Defendant and
Respondent.
                                          *                  *                  *
              The adult stepchildren of Joan N. Mahurin (Joan) challenge the manner in
which she divided an inter vivos trust on the death of her husband of 40 years, Walker M.
Mahurin (Bud).1 They contend that she was hiding assets and that the court erred in its
rulings with respect to witness credibility, breach of fiduciary duty, clarification of trust
terms, witness examination, scope of discovery, and allocation of attorney fees. They
have not met their burden to show error. We affirm.
                                               I
                                           FACTS
              Bud and Joan created the Mahurin Family Trust dated October 1, 1996
(Mahurin Family Trust). They had been married for 40 years when Bud passed away on
May 11, 2010.
              Bud had three children from a prior marriage—Lynn Vaughan, George
Mahurin and Michael Mahurin (collectively, appellants). Joan had one child from a prior
marriage—Valerie Miller (Valerie). Each of the four children was a remainder
beneficiary of the Mahurin Family Trust.
              On November 29, 2010, Joan, as trustee of the Mahurin Family Trust,
signed a declaration of trust split. Attached to that declaration were four schedules
pursuant to which she allocated property to the various subtrusts as follows: (1) Schedule
A—the household furnishings, an unspecified bank account, a Rolls Royce, two boats
and some unspecified jewelry to the survivor’s trust; (2) Schedule B—the “upstairs” or
“top portion” of certain Newport Beach property and miscellaneous personal property to
exemption trust B1; (3) Schedule C—the “downstairs” or “bottom portion” of the
Newport Beach property to exemption trust B2; and (4) Schedule D—the balance of the
trust estate to exemption trust B2.


1            “Hereafter, we refer to the parties by their first names, as a convenience to
the reader. We do not intend this informality to reflect a lack of respect. [Citation.]” (In
re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1513, fn.2.)

                                               2
                 In May 2011, appellants filed a petition in the probate court, seeking to
challenge the trust split. In short, they asserted that, on the death of Joan as the surviving
spouse, the community property portion of the trust estate was to be distributed 50
percent to themselves collectively and 50 percent to Valerie. However, because of the
manner in which Joan had allocated property to the various subtrusts, the intended equal
split between the two families would be thwarted, with the greater share being distributed
to Valerie. In addition, they claimed that there were substantial cash accounts and other
assets that were not mentioned in the trust split and that valuations of the properties were
needed.
                 On September 7, 2011, Joan executed a retraction of her prior declaration
of trust split. Attached to the retraction was a new allocation/inventory of assets as of
date of death.
                 The inventory showed total community property of $1,309,617, comprised
of: (1) real property in Newport Beach valued at $1,100,000; (2) four Wells Fargo Bank
accounts totaling $160,503; (3) one Bank of America checking account valued at $115;
(4) two boats with a collective value of $18,000; (5) a nonoperational 1969 Rolls Royce
valued at $5,999; and (6) household furniture and furnishings valued at $25,000. The
inventory also showed the separate property of Bud to be valued at $350 and the separate
property jewelry of Joan to be valued at $5,000. Joan allocated $654,808.50 in
community property plus her $5,000 in separate property to the survivor’s trust and
$654,808.50 in community property plus Bud’s $350 in separate property to the
exemption trust. She used only one exemption trust, explaining in a note that since there
was no estate tax due, there was no need for a second exemption trust.
                 In October 2011, appellants issued deposition subpoenas to Union Bank
with respect to two accounts—one checking account and one money market account.
They sought bank records from January 1, 2005 to January 1, 2011.



                                                3
              Joan filed a motion to quash. She argued, inter alia, that the accounts in
question were her separate property, held in her name alone, and that the deposition
subpoenas invaded her right to privacy.
              In her motion, Joan provided the following background information:
“Following the death of Bud Mahurin, [she] retained attorney Samuel Kelsall to assist her
with the . . . administration of the [Mahurin Family] Trust, and in November 2010, Mr.
Kelsall prepared a ‘Declaration of Trust Split’ which was wholly incongruent and
inconsistent with the terms of the [Mahurin Family] Trust. (Unfortunately, [she], as a lay
person, signed this document without understanding it.)” Attached to her motion to
quash was the declaration of Attorney Timothy J. Blied stating Joan’s prior attorney,
Attorney Kelsall, had prepared the erroneous declaration of trust split and that he,
Attorney Blied, had attempted to resolve the matter with appellants’ counsel, to no avail.
              The court granted Joan’s motion in part and denied it in part. It issued a
protective order and directed Union Bank to comply with the deposition subpoenas,
limited to a records period of May 11, 2009 to January 1, 2011.
              In addition to the foregoing, Joan filed a petition for instructions. She
pointed out ambiguities in the Mahurin Family Trust terms and sought clarification from
the court on how to construe the Mahurin Family Trust. The court ordered that the
Mahurin Family Trust be construed so as to require Bud’s half of the community
property, plus his separate property, to be placed in a single exemption trust, distributable
to appellants on Joan’s death, and to eliminate the need for either a second exemption
trust or a marital trust. It also construed the Mahurin Family Trust so as to require the
payment of income from the exemption trust to Joan during her lifetime and to permit the
invasion of principal of the exemption trust for Joan’s health, education, support and
maintenance, without the prior exhaustion of the principal of the survivor’s trust.




                                              4
              Appellants challenge the court’s rulings on their petition, on Joan’s motion
to quash, on Joan’s petition for instructions, and on witness examination at trial. They
also challenge certain findings of the court.
                                                II
                                       DISCUSSION
A. Credibility of Witnesses:
              In its March 27, 2013 minute order, the court stated: “The court has
considered and weighed all the evidence, documentary as well as oral. The Court has
weighed the credibility of the various witnesses. The Court found Valerie Miller and
Joan Mahurin to be credible witnesses. Joan, now around 80 years of age, clearly
suffered from memory loss and some confusion. But this did not detract from her
credibility. Bud’s children were also credible, as were the experts. So what it comes
down to is a weighing of the evidence.”
              Appellants attack what they characterize as the court’s “finding” that Joan
suffered from memory loss. They say it was unsupported by the evidence. To the
contrary, the record supports the court’s comments about Joan’s memory and mental
state.
              At trial, appellants’ counsel asked Joan whether she had a certified public
accountant (CPA) prepare the inventory and allocation. She responded: “I don’t
remember. I guess.” The court then asked Joan how old she was. She could not
remember that, either.
              Joan was receiving services from a caregiver as well as assistance from
Valerie, too. She admitted to having had a memory problem for a couple of years. The
reporter’s transcript well reflects that she was confused and forgetful at the time she
testified. Indeed, while on the witness stand, she stated more than once, “I need help.”
At one point, the court expressed concern about Joan’s age and ability to remember and
asked, “[D]oes everybody feel she’s up to doing this?”

                                                5
              There is no reason to detail each portion of the reporter’s transcript
reflecting confusion or memory issues. Just because there was no evidence that a doctor
had diagnosed Joan as having memory loss, this does not mean that the court erred in its
observation that she displayed memory issues and confusion during trial. In any event,
the point of the matter is that the court weighed the credibility of the witnesses and found
Joan to be credible.
              “The trier of fact determines the credibility of witnesses, weighs the
evidence, and resolves factual conflicts. We cannot reject the testimony of a witness that
the trier of fact chooses to believe unless the testimony is physically impossible or its
falsity is apparent without resorting to inferences or deductions. As part of its task, the
trier of fact may believe and accept as true only part of a witness’s testimony and
disregard the rest. On appeal, we must accept that part of the testimony which supports
the judgment. [Citation.]” (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) Simply
put, the appellate court does not reweigh the credibility of the witnesses. (Johnson v.
Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622.)


B. Breach of Fiduciary Duty:
              The court found that Joan did not breach her fiduciary duty when she
executed the declaration of trust split on November 29, 2010. It reasoned that the trust
split was moot inasmuch as it was properly retracted, there was insufficient evidence of
damage resulting from the retracted trust split, the terms of the trust relieved the trustee of
liability for all but gross negligence or willful misconduct, and the evidence did not
support the claim that Joan either had committed gross negligence or had engaged in
willful misconduct.
              Appellants claim the court erred in holding that Joan did not breach her
fiduciary duty when she executed the November 29, 2010 declaration of trust split. In
making this assertion, they rely on certain of Joan’s trial testimony.

                                              6
              At trial in February 2013, Joan was asked to look at a copy of the
November 29, 2010 declaration of trust split. When asked whether it looked familiar to
her, she replied, “Vaguely.” Then she was asked questions about the various schedules to
the declaration. With respect to schedule A, pertaining to the survivor’s trust, and in
particular with reference to the listing of “Bank Account,” Joan was asked “were you
intending that to be a particular bank account?” Joan answered, “No.” Then she was
asked, “Were you intending it to encompass all the bank accounts?” She replied, “Yes. I
guess.” Joan was also asked, “Now when Bud passed away, isn’t it true you had four
bank accounts, another Wells Fargo Bank, right, you and Bud together?” Joan
responded, “I thought we had two.” However, on further questioning she recollected that
there was one account at Bank of America and there were two accounts at Union Bank at
the time Bud died.
              When being questioned about schedule B, which pertained to exemption
trust B1 and did not reference any bank accounts, Joan was asked, “And when you signed
this schedule B, isn’t it true that you did not intend for Lynn, George, and Michael to
have any of the proceeds from the Wells Fargo accounts?” Joan answered, “Yes.”
              This last response is what appellants hang their hats on to say that Joan
breached her fiduciary duty to them. They note that the Wells Fargo bank accounts had a
collective value of more than $160,000 at the date of Bud’s death. They cite section 4.3
of the Mahurin Family Trust which identifies the remainder beneficiaries of the
community property portion of the trust who shall share the income and principal thereof
after the death of both settlors: Valerie as to 50 percent and appellants collectively as to
50 percent. Given their identification as 50 percent beneficiaries, collectively, appellants
claim that Joan’s attempt to deprive them of half of the Wells Fargo bank accounts was
“a step above gross negligence as a matter of law.” We disagree.
              There are several points appellants overlook. First, they completely ignore
the fact that Joan appeared to have only a vague recollection of the particulars of the trust

                                              7
split at the time she testified as to her intent with respect to schedule B. Second, they
appear not to even consider the possibility that Joan may have intended an equal split that
allocated the cash to one subtrust and other assets of an equal value to another subtrust.
They cite no provision of the Mahurin Family Trust which requires that every asset must
be divided into fractional shares and that one equal share of every asset must be allocated
to each subtrust. They do not show that it would be improper, for example, to allocate a
mix of properties to the various subtrusts as long as the total value of each subtrust was
proper.
              Third, they completely overlook the fact that the original trust split
allocated to Joan’s survivor’s trust far less of the community property than she was
entitled to. Section 5.21 of the Mahurin Family Trust provides that the survivor’s trust
shall be funded with the surviving spouse’s half of the community property in the trust as
well as any of her separate property in the trust. However, even assuming the original
trust split is properly construed as allocating all of the Wells Fargo bank accounts to
Joan’s survivor’s trust, the trust split shorted Joan.
              Although schedule A to the original trust split does not give the values for
the various assets listed thereon, the later-prepared inventory does. The Wells Fargo
bank accounts, as appellants so frequently remind us, were worth about $160,000 at the
time of Bud’s death. The Bank of America account was worth about $115. The
remaining items on schedule A included a nonoperational 1969 Rolls Royce worth about
$5,999, two boats worth about $18,000 collectively, household furnishings valued at
about $25,000, and jewelry. Joan’s jewelry, claimed to be her separate property, was
worth about $5,000. Thus, the original trust split allocated to Joan’s survivor’s trust
property worth about $214,000 (including her jewelry) out of a community property
estate exceeding $1.3 million in value, even though section 5.21 of the Mahurin Family
Trust provides that her half of the community property and all of her separate property
are to be allocated to the survivor’s trust.

                                               8
              Fourth, appellants completely downplay the significance of the fact that an
elderly woman in her 80’s asked legal counsel to prepare the trust split, sought another
legal opinion when the remainder beneficiaries objected, and retracted the original trust
split and provided a revised one when she was advised that the original trust split was
improper.
              The only legal authority appellants cite is Frittelli, Inc. v. 350 North Canon
Drive, LP (2011) 202 Cal.App.4th 35, a summary judgment case having to do with
commercial leasing. (Id. at p. 39.) They cite just two sentences from that case: “To
constitute gross negligence, misconduct must demonstrate ‘either a “‘“want of even scant
care”’” or “‘“an extreme departure from the ordinary standard of conduct.”’”
[Citations.]’ [Citation.] Although gross negligence usually presents a question of fact
[citation], in some circumstances its existence can be resolved as a question of law
[citation . . .].” (Id. at p. 52.) But here, appellants have not shown that Joan lacked “even
scant care” or committed “an extreme departure from the ordinary standard of conduct”
in relying on counsel to prepare a trust split and in executing a trust split that did not
allocate a fractional share of each asset to each subtrust.
              Moreover, appellants ignore the first sentence of the paragraph of Frittelli,
Inc. v. 350 North Canon Drive, LP, supra, 202 Cal.App.4th 35, containing the above-
referenced quote. That sentence provides: “Generally, ‘[g]ross negligence is pleaded by
alleging the traditional elements of negligence: duty, breach, causation, and damages.
[Citation.]” (Id. at p. 52.) Even assuming the evidence demonstrated that Joan had
breached her duty to appellants as remainder beneficiaries, they have not shown how any
such breach in the execution of the initial declaration of trust split caused them to suffer
damage.




                                               9
C. Trust Reformation:
              (1) Petition for instructions—
              Probate Code section 17200 permits the trustee of a trust to petition the
court for instructions concerning the internal affairs of the trust. (Prob. Code, § 17200,
subds. (a),(b)(6).) Pursuant to that statute, Joan requested that the court instruct her on
two matters: (1) the number of subtrusts into which the Mahurin Family Trust should be
split; and (2) the payment to herself of the income and principal of the exemption trust.
              (2) Trust split—
              In her petition, Joan observed that the Mahurin Family Trust required the
property of the deceased settlor to be allocated to three subtrusts—exemption trust B1,
exemption trust B2, and the marital trust. The assets were to be allocated according to a
formula based on federal estate tax laws in effect at the time of death.2
              However, Joan explained that because Bud died in 2010 with property less
than $1,000,000 in value, the estate tax laws at the time made allocation to three subtrusts
unnecessary. All of Bud’s property—both his separate property and his share of the
community property—could be allocated to one subtrust without estate tax ramifications.
She requested that the court instruct her to allocate all of Bud’s property to exemption
trust B1 and to disregard as superfluous exemption trust B2 and the marital trust
described in the Mahurin Family Trust.
              The court granted this request. Appellants do not challenge this portion of
Joan’s request for instructions or the court’s ruling on the point. However, they take
issue with her request for instructions on the payment of principal and income from

2              Section 5.22 of the Mahurin Family Trust states: “The Exemption Trust
(B1) shall consist of the deceased spouse’s separate property and the deceased spouse’s
interest in the Settlors’ community estate.” Section 5.23 provides: “The Exemption
Trust (B2) shall consist of a pecuniary amount equal to the maximum sum that can be
allocated to a trust that does not qualify for the federal estate tax marital deduction to any
extent, without producing any federal estate tax . . . .” Finally, section 5.24 provides that
the remainder of the trust estate, if any, shall be allocated to the marital trust.

                                              10
exemption trust B1 and on the court’s ruling thereon. We turn to these matters now.
              (3) Power to invade principal—
                             (a) trust modification
              Section 5.28 of the Mahurin Family Trust addresses the payment of income
and principal from the exemption trusts and from the marital trust.3 It directs the trustee
to pay all income from exemption trust B1 and exemption trust B2 to the surviving
spouse. It also permits the trustee to invade the principal of exemption trust B2 for the
beneficiaries’ health, education, support and maintenance. Finally, it allows the trustee to
invade the principal of “the Exemption Trust or the Marital Trust without exhausting the
Survivor’s Trust if the Trustee considers it advisable.” However, section 5.28 says
nothing about what should happen if the tax laws in effect at the time of death were such
that all property was allocated to exemption trust B1 and none allocated to either
exemption trust B2 or the marital trust.
              In its judgment, the court ordered that the provision be construed to read as
follows: “On the Deceased Spouse’s death, the Trustee shall pay to or apply for the
benefit of the Surviving Spouse all of the net income of the Exemption Trust . . . . If the
Trustee determines that the payment of income shall be insufficient, the Trustee may pay
to or apply for the benefit of the Surviving Spouse such amounts of principal for her


3               Section 5.28 of the Mahurin Family Trust provides: “On the deceased
spouse’s death, the Trustee shall pay to or apply for the benefit of the surviving spouse
from the net income and principal of the Exemption Trust all income from the Exemption
Trusts B1 and B2. [¶] If the Trustee considers the income insufficient, the Trustee shall
also pay to or apply for the benefit of the surviving spouse all sums from principal of
Trust B2 as the Trustee, in the Trustee’s discretion, considers necessary for the
beneficiaries’ respective proper health, education, support, and maintenance. [¶]
Payments from principal to the surviving spouse shall be made first from the Survivor’s
Trust until it is exhausted, then from the Marital Trust until it is exhausted, and thereafter
from the Exemption Trust B2, except that all or any part of those payments may be made
from the Exemption Trust or the Marital Trust without exhausting the Survivor’s Trust if
the Trustee considers it advisable.”

                                             11
health, education, support and maintenance, taking into account other income or
resources available to the Surviving Spouse; provided however, that the Trustee is not
required to exhaust the principal of the Survivor’s Trust prior to making such payment.”
               In so ordering, the court observed that when Bud died in 2010, there was no
federal estate tax. It also found “that the primary intent of the [Mahurin Family] Trust is
to provide for the settlors during their lifetime, especially given the length of this
marriage, some 40 years.”
                              (b) authority for relief
               Appellants argue that Joan’s petition was not really a request for
instructions, to be governed by Probate Code section 17200, but was in actuality a request
for reformation and modification of an irrevocable trust, to be governed by Probate Code
section 15403. That statute provides that, subject to certain limitations, “if all
beneficiaries of an irrevocable trust consent, they may compel modification or
termination of the trust upon petition to the court.” (Prob. Code, § 15403, subd. (a).)
However, as appellants point out, they as beneficiaries did not consent to the
modification of the Mahurin Family Trust.
               Even so, the suggestion that Joan erred in bringing a Probate Code section
17200 petition or the court erred in acting on it without beneficiary consent is contrary to
case law. In Ike v. Doolittle (1998) 61 Cal.App.4th 51, the court stated that Probate Code
section 15400 et seq. was not the only source of authority for trial court modification of a
trust. It noted that Probate Code section 17200 permits the trustee “to ‘petition the court
. . . concerning the internal affairs of the trust . . . .’” (Ike v. Doolittle, supra, 61
Cal.App.4th at p. 84.) It also observed that section 17200, subdivision (b)(13) authorizes
a trustee to seek a court order modifying the trust. (Ike v. Doolittle, supra, 61
Cal.App.4th at p. 84.) Consequently, there was no impropriety in Joan’s requesting that
the court instruct her with respect to the handling of the Mahurin Family Trust, including



                                                12
the payment of income and principal, especially given the effect of the federal estate tax
laws in effect at the time of the trust split.
               Appellants also say that absent compliance with Probate Code section
15403, the only other way to obtain the relief Joan sought was to seek reformation of the
Mahurin Family Trust by presenting clear and convincing proof that settlor intent was
other than that stated in the Mahurin Family Trust. In support of this position, they cite
only one case—Campbell v. Republic Indemnity Co. (1957) 149 Cal.App.2d 476, having
to do with the reformation of an automobile insurance policy. (Id. at pp. 477-478.)
               In Campbell v. Republic Indemnity Co., supra, 149 Cal.App.2d 476, the
court observed: “Reformation is a remedy accorded to an aggrieved party to a written
contract when, through fraud or mistake . . . , the contract does not truly express [the
parties’] intention. . . . The court is not limited to inquiring what the language of the
contract was intended to be, but may inquire what the contract was intended to mean.
[Citation.] Although the party seeking revision of the contract must present clear and
convincing proof, the intention of the parties is a factual matter to be determined by the
trial court, and our review of the judgment is limited to the question whether it is
supported by substantial evidence.” (Id. at pp. 479-480.)
               Were we to construe Joan’s petition as a request for reformation, rather than
a request for instructions, and to apply the rule expressed in Campbell v. Republic
Indemnity Co., supra, 149 Cal.App.2d 476, we would ask whether substantial evidence
supports an implied finding that Joan presented clear and convincing proof that she and
Bud as settlors intended for the Mahurin Family Trust to be construed in the manner the
court construed it. (Virtanen v. O’Connell (2006) 140 Cal.App.4th 688, 709 [we imply
findings to support the judgment].)
                              (c) written evidence of settlor intent
               Appellants cite four items to show that the evidence did not support the
court’s construction. First, they cite section 5.28 of the Mahurin Family Trust. That

                                                 13
provision, as we have already discussed, fails to address the situation where neither
exemption trust B2 nor the marital trust is ever funded, due to the state of the federal
estate tax laws on the date of death. Consequently, it is of little assistance in
demonstrating the intent of the settlors given the state of the federal estate tax laws on the
date of death.
                 Second, appellants cite section 5.22 of the Mahurin Family Trust, which
provides simply: “The Exemption Trust (B1) shall consist of the deceased spouse’s
separate property and the deceased spouse’s interest in the Settlor’s community estate.”
Read in isolation, section 5.22 would dictate that all of Bud’s property would be placed in
exemption trust B1 on his death and there would be no other subtrusts. Yet other
provisions require the creation of exemption trust B2 and the marital trust. At a
minimum, section 5.22 indicates that the intention was for the Mahurin Family Trust
estate to be divided and for the deceased spouse’s separate property and share of
community property to go into a subtrust other than the survivor’s trust. However, the
provision affords little insight with respect to the issues before us.
                 Third, appellants cite section 4.3 of the Mahurin Family Trust. That is the
provision identifying the remainder beneficiaries designated to share in the community
property portion of the Mahurin Family Trust “after the death of both Settlors.” It
provides that Valerie shall take 50 percent and appellants collectively shall take the other
50 percent. That section is inconsistent with other Mahurin Family Trust provisions to
the extent that it can be construed as meaning that the community property remaining on
hand after the second death should then be divided 50/50. Section 5.20, in contrast, states
the property is to be divided after the first death, not the second.
                 In any event, appellants’ argument is that the Mahurin Family Trust
provisions show Bud intended for them to have the principal of his estate and further
intended that Joan not have the power to invade the principal of his share. The problem,
as we have indicated, is that the Mahurin Family Trust terms are ambiguous on various

                                               14
points, notably what happens with respect to the payment of income and principal during
Joan’s life when she is the survivor and the estate tax laws in effect at the time of Bud’s
death are such that the creation and funding of exemption trust B2 and the marital trust
are unnecessary.
                            (d) testimony
              Fourth and finally, appellants cite a portion of the testimony of Joan’s
expert witness, Attorney John Deily. Appellants state: “JOAN’s Own Expert, Mr. Deily
agreed once you fund the SubTrusts, namely the Survivor’s Trust and Exemption Trust
B-1, the issue of need for Support, Maintenance and Health never arises. [Record
reference.] It was therefore improper and a gratuitous act by the Trial Court to Reform
the Irrevocable Exemption Trust B-1 so JOAN can tap and spend Principal.”
              Appellants fail to prove their point. In the cited exchange, appellants’
counsel asked Attorney Deily: “If . . . only the subtrusts—the survivor’s trust and the
exemption B1 trust are funded, would you agree then that the analysis in connection with
. . . [the] need for support, education, maintenance, and health never arises?” Attorney
Deily responded: “That’s correct. I would agree with you.”
              Appellants cite this exchange without explanation or analysis. However,
we note that in another portion of the reporter’s transcript, appellants’ counsel and
Attorney Deily each allude to the fact that the words of the Mahurin Family Trust
pertaining to an invasion of the principal as “necessary for the beneficiaries’ respective
proper health, education, support, and maintenance” have to do with what they refer to as
“Treasury Regulation 2041.”
              As a matter appellants do not discuss, we note that title 26 United States
Code section 2041 generally provides that property shall be included in the value of the
gross estate of a decedent who had a power of appointment over the property exercisable
in favor of himself or herself. (26 U.S.C. § 2041(a)(2),(b).) However, the statute also
provides that “[a] power to consume, invade, or appropriate property for the benefit of the

                                             15
decedent which is limited by an ascertainable standard relating to the health, education,
support, or maintenance of the decedent shall not be deemed a general power of
appointment.” (26 U.S.C. § 2041(b)(1)(A).) It appears that the tax provisions of the
Mahurin Family Trust included language about the invasion of principal as “necessary for
the beneficiaries’ respective proper health, education, support, and maintenance” in order
to reduce the likelihood that the principal of the deceased spouse’s subtrusts would be
included in the gross estate of the surviving spouse on her subsequent death, for federal
estate tax purposes.
              In any event, appellants do not explain how Attorney Deily’s response to
their counsel’s question about the title 26 United States Code section 2041 language
meant that Attorney Deily agreed it was improper for the trial court to construe the
Mahurin Family Trust so as to enable Joan to invade the principal of exemption trust B1
on the terms the court specified. To the contrary, other portions of Attorney Deily’s
testimony belie that suggestion.
              Although appellants’ counsel tried to get Attorney Deily to concede that it
was below the standard of care to file a petition requesting permission for the trustee to
invade the principal of exemption trust B1, Attorney Deily would not concede the point.
He repeatedly opined that the terms of the Mahurin Family Trust were “contradictory and
confusing,” and that it was not a violation of the standard of care to petition the court for
instructions when the Mahurin Family Trust terms were unclear and the trustee was
uncertain how to proceed.
              Appellants’ counsel asked Attorney Deily: “[S]ection 4.3 [of the Mahurin
Family Trust] provides that 50 percent of all the community property is to go to Lynn,
George, and Michael. And my question to you is, would it not be below the standard of
care for a trustee to seek to diminish that 50 percent by . . . filing a petition to modify the
trust to invade the principal in this case, B1?” Attorney Deily responded in the negative,
explaining: “It is not gross negligence or [a] violation of the standard of care of this

                                              16
particular trust to file a petition that seeks an interpretation that may benefit one
beneficiary over another if you’re not sure what it is. . . . I believe it would be . . . self-
dealing if you didn’t, in fact, do that. Just because somebody is a trustee and also a
beneficiary, they don’t have to forget about their beneficial interest. So if they bring it to
the court, they lay it out and give notice to everybody that’s impacted by it, I do not
believe that that would be below the standard of care for this trust.”
               Appellants’ counsel continued to press the point, by asking Attorney Deily:
“But would that not in this instance, in looking at [section] 4.3, be contradictory to the
intent of the settlors to provide 50 percent of the community [property] to Lynn, George,
and Michael?” Attorney Deily responded: “You know, again, the intent of the settlors is
always relevant, and there may be certain intent arguments that when you have an older
trust drafted many years ago when interest rates and what is generated on principal is 5 or
6 percent, and now when it’s operative it may only be generating 1 percent, that would be
perhaps inconsistent and grounds for coming in and seeking a modification because
trustor would have wanted to provide for his surviving spouse to have a reasonable
income stream.”
               As the foregoing shows, Attorney Deily suggested that the settlors intended
for the surviving spouse to have a reasonable income and that the provisions with respect
to invasion of principal were drafted at a time when interest rates were considerably
higher than when Bud died. He further suggested, impliedly, that it was unlikely the
settlors foresaw the possibility that the income stream upon trust split would be so much
lower as to prompt a need or desire to invade principal.
               We observe that appellants do not cite any testimony or evidence of Joan
on the topic of intent, or even mention whether she testified or provided evidence on the
topic. They also do not cite any of the testimony of their own expert witness, Attorney
Harry Westover on the point. We have taken the time on our own to discover that
Attorney Westover agreed “the language in the [Mahurin Family] Trust referring to B1

                                               17
and B2 [was] very poorly drafted” and “confusing.” However, we have not taken the
time to review all his testimony to see what, if anything, he had to say either about the
intent of the settlors, with respect to income stream or invasion of principal, as may be
gleaned from the terms of the Mahurin Family Trust, or about the court’s construction of
the Mahurin Family Trust as consistent with that intent. It is not our obligation to do so.
(Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.)
              It is appellants’ burden to show error (Virtanen v. O’Connell, supra, 140
Cal.App.4th at p. 710), and they have failed to do so. “‘It is well established that a
reviewing court starts with the presumption that the record contains evidence to sustain
every finding of fact.’ [Citations.] [Appellants’] contention herein ‘requires [appellants]
to demonstrate that there is no substantial evidence to support the challenged findings.’
(Italics added.) [Citations.] A recitation of only [appellants’] evidence is not the
‘demonstration’ contemplated under the above rule. [Citation.] Accordingly, if, as
[appellants] here contend, ‘some particular issue of fact is not sustained, they are required
to set forth in their brief all the material evidence on the point and not merely their own
evidence. Unless this is done the error is deemed to be waived.’ (Italics added.)
[Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; accord, Myers
v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 749.)


D. Examination of Valerie:
              (1) Background—
              Appellants claim the court erred in precluding their direct examination of
Valerie and permitting only their cross-examination of her, limited to the scope of Joan’s
direct examination. Certain background information is required to understand their point.
              At the end of the first day of trial, on February 11, 2013, the court asked
appellants’ counsel about the witnesses he intended to call on February 13. After
identifying several other witnesses he intended to call, appellants’ counsel added: “And I

                                             18
. . . need to call Valerie Miller. I mean, she’s outside.[4] If I need to serve her with a trial
subpoena tonight or tomorrow, I’ll do it. Doesn’t make sense to me. I’ll do it.” The
court asked: “Is she going to be here, voluntarily testify?” Joan’s counsel stated: “Not
on [appellants’] side. Not on [their] case.” The court then said: “You’re not gonna
provide her. I know she’s not your client. I wouldn’t want somebody coming on my
door with a subpoena. Why don’t you guys work that out.” Joan’s counsel replied: “We
can work that out, I’m sure.” Appellants’ counsel made no further comments on the topic
before the court. The record provides no indication whether the attorneys ever had any
subsequent communication on the matter or made any effort to work something out.
               At one point, on February 13, the court asked appellants’ counsel if he
intended to call any more witnesses. Appellants’ counsel replied: “I was also going to
call Valerie Miller, and I understood that counsel was going to produce her. We were
gonna work that out, I believe she mentioned on Monday. I have some questions for
her.” Joan’s counsel said: “She’s gonna be my witness. He didn’t subpoena her; he
can’t call her.”
               Appellants’ counsel thereafter stated: “Well, let me say for the record, I
understood on Monday that issue was gonna be worked out; thus it wouldn’t be necessary
to have a trial subpoena served on the witness over the holiday, and so, you know, having
heard that, we’ll work it out, now I’m hearing go pound sand. That’s disconcerting.”
However, appellants’ counsel offered no information on whether he had contacted Joan’s
counsel about the witness.
               The court stated that if it were established that Valerie was affiliated with a
party, she could be called under Evidence Code section 776. It also stated that, were that
not established, appellants’ counsel could cross-examine Valerie within the scope of the
direct examination.

4            The court had granted an Evidence Code section 777 motion in limine to
exclude from the courtroom nonparty witnesses while not testifying.

                                               19
              Ultimately, Joan called Valerie as a witness. The court sustained the
objections of Joan’s counsel when, on cross-examination, appellants’ counsel endeavored
to ask questions beyond the scope of direct examination.
              (2) Discussion—
              Appellants rely on Code of Civil Procedure section 1990, which provides:
“A person present in Court . . . may be required to testify in the same manner as if he
were in attendance upon a subpoena issued by such Court . . . .” They say People v.
Simon (1951) 107 Cal.App.2d 105 shows the court should have applied section 1990 to
allow them to conduct a direct examination of Valerie.
              In People v. Simon, supra, 107 Cal.App.2d 105, a defendant in propria
persona requested that the court subpoena an out-of-state witness, but the court declined.
However, the witness appeared on behalf of the People as plaintiffs. (Id. at pp. 118, 121.)
The appellate court held that, given Code of Civil Procedure section 1990, it was error to
restrict the defendant’s examination of the witness to cross-examination. However, it
also held that the defendant had failed to demonstrate the error was prejudicial error
requiring reversal. (Id. at p. 122.)
              In the case before us, appellants likewise fail to show prejudicial error, a
standard that applies in civil cases as well as criminal cases. (Conservatorship of Maria
B. (2013) 218 Cal.App.4th 514, 532.) Appellants mention only one point they would
have liked to pursue in their examination of Valerie, as we shall discuss.
              On direct examination, Valerie was asked about schedule A to the original
trust split. Schedule A itemized all of the property being allocated to the survivor’s trust.
The schedule listed six items. The second item read, “Bank Account.” Joan’s counsel
asked: “Do you remember seeing another version of this schedule where ‘bank accounts’
was plural?” Valerie answered, “Yes.”
              On cross-examination, appellants’ counsel asked Valerie, “. . . and you
testified that you saw a schedule that said ‘bank accounts,’ plural?” Valerie responded,

                                             20
“Yes.” He then asked her when the last time was that she had seen that version of the
schedule and where she had seen it. Valerie said the last time she had seen it was that
afternoon, “[i]n [her] mother’s book at home.”
              Appellants’ counsel then asked Valerie: “What is in your mother’s book at
home?” Joan’s counsel objected: “Outside the scope. Calls for speculation. Hearsay.”
The court said simply: “Sustained.”
              On appeal, appellants do not claim the court erred in sustaining the
objections. Rather, they say they were prejudiced in not having an opportunity to
conduct a broader examination of Valerie who testified about what they characterized as
“a Key Document that was never produced in Discovery.” However, appellants cite no
portion of the record to show either what discovery was conducted or that Joan failed to
produce a document she should have produced.
              All we have is a line of questioning about a different version of schedule A
to the original trust split. The disclosure that there was a version of schedule A
referencing “bank accounts” in the plural, provides no more insight than we had already.
There is no dispute that there were multiple community property bank accounts in
existence on the date of Bud’s death. Assuming the intention under the version of
schedule A referencing “bank accounts” was for Joan to allocate every single community
property bank account to the survivor’s trust, it is of no consequence. Joan retracted that
trust split on the advice of her second attorney when she learned that her first attorney
had prepared a defective trust split. We have already stated that Joan did not breach her
fiduciary duty to appellants by providing a trust split which she withdrew when she
learned it was defective.
              Furthermore, as we have observed already, the original trust split, which
appellants believed to be so unfair that they sued Joan over it, actually allocated far less
property to Joan’s survivor’s trust than she was entitled to. This is true even if schedule



                                             21
A is interpreted to mean that every single community property bank account is allocated
to that subtrust.
               Anyway, the long and the short of it is that appellants have not
demonstrated how they were prejudiced by the court’s failure to permit them to conduct a
direct examination of Valerie. Consequently, they have not demonstrated reversible
error. (People v. Simon, supra, 107 Cal.App.2d at p. 122; Conservatorship of Maria B.,
supra, 218 Cal.App.4th at pp. 532-533.)


E. Deposition Subpoenas:
               (1) Background—
               As noted above, appellants issued deposition subpoenas to Union Bank
with respect to two accounts—one checking account and one money market account.
They sought bank records from January 1, 2005 to January 1, 2011.
               In her motion to quash, Joan argued that the deposition subpoenas were
overbroad and sought irrelevant information in that they requested documents for a six-
year period during which the Mahurin Family Trust was revocable. She also asserted that
the accounts in question were her separate property, held in her name alone, and that the
deposition subpoenas invaded her right to privacy. Joan requested that the court quash
the deposition subpoenas, or in the alternative, issue a protective order.
               Attached to Joan’s motion was her own declaration, wherein she stated that
she and Bud were married in May 1970. She also said that her mother died in 1972 and
left her some money, some stock and certain real property in Alhambra. Joan further
declared that her inheritance was always maintained as her separate property and that she
never transmuted any of it to community property. She said that her separate property on
hand was the Alhambra property and the two Union Bank accounts.
               The court ordered Union Bank to comply with the deposition subpoenas,
limited to a records period of May 11, 2009 to January 1, 2011—that is, for a period

                                             22
beginning one year before Bud’s death and ending about seven and a half months
thereafter. It also ruled that the documents produced would be subject to a protective
order, on terms Joan had proposed.
              Appellants argue that the issuance of the protective order and the limitation
on the period of production constituted prejudicial error.
              (2) Protective order—
              The protective order provides that confidential materials containing
sensitive financial information may be marked “‘ATTORNEYS’ AND EXPERTS’
EYES ONLY.’” It also states: “Access to materials designated ‘ATTORNEYS AND
EXPERTS’ EYES ONLY’ shall be limited to counsel of record for named parties, their
legal associates, experts, and regularly employed office staffs only, but shall not in any
way, including the contents thereof, be disclosed to parties without further order of this
Court.”
              Appellants contend this language prejudiced them because it forbid their
attorney from disclosing the contents of the Union Bank records to them without further
court order, thereby “hamper[ing] effective representation on a central issue in the case.”
However, appellants do not explain in what way representation was hampered. Their
attorney and their CPA had access to the records and so were able to analyze them on
their behalves. If there was a reason why either their attorney or their CPA needed to
disclose the contents of the records to them in order to perform an analysis or to properly
represent them, appellants could have explained the situation to the court and sought
permission to disclose the contents of the records.
              None of the cases appellants cite having to do with discovery orders either
addresses a protective order similar to the one before us or indicates that the court erred
in imposing the order it did. (See Valley Bank of Nevada v. Superior Court (1975) 15
Cal.3d 652; Forthmann v. Boyer (2002) 97 Cal.App.4th 977; and Rawnsley v. Superior
Court (1986) 183 Cal.App.3d 86.) It is appellants’ burden to demonstrate error and to

                                             23
cite legal authorities in support of their position. (Conservatorship of Maria B., supra,
218 Cal.App.4th at pp. 532-533 [appellant’s burden to show miscarriage of justice];
Virtanen v. O’Connell, supra, 140 Cal.App.4th at p. 710 [appellant’s burden to show
reversible error]; (Roden v. AmerisourceBergen Corporation (2010) 186 Cal.App.4th
620, 648-649 [argument unsupported by citation to legal authority waived].) They have
done neither.
                (3) Period of production—
                Appellants also argue the protective order was sufficient to protect Joan’s
privacy interests, so there was no reason to limit the period of production. They say they
discussed the applicable legal criteria for the consideration of privacy objections in their
opposition papers at pages 238 through 332 of the clerk’s transcript. While this citation
to the record might seem to be a simple method of circumventing page limitations on
appeal, it doesn’t fly. “An appellant cannot rely on incorporation of trial court papers,
but must tender arguments in the appellate briefs. [Citation.]” (Paterno v. State of
California (1999) 74 Cal.App.4th 68, 109; accord, Banning v. Newdow (2004) 119
Cal.App.4th 438, 455.) “We therefore disregard these purported incorporations by
reference.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 294, fn. 20.)
In short, we will review only the authorities appellants cite in their appellate briefs and
will not perform what is essentially an unassisted review of vast expanses of the record to
find arguments and authorities on appellants’ behalves. (Niko v. Foreman (2006) 144
Cal.App.4th 344, 368.)
                Valley Bank of Nevada v. Superior Court, supra, 15 Cal.3d 652, which
appellants cite, observes that a court must engage “in a careful balancing of the right of
civil litigants to discover relevant facts, on the one hand, with the right of bank customers
to maintain reasonable privacy regarding their financial affairs, on the other.” (Id. at p.
657.) The case further notes that a court needs to strike a balance between the competing
considerations and that it is vested with discretion in doing so. (Id. at p. 658.) It

                                              24
articulates the following factors to be considered in the exercise of discretion: “‘. . . the
purpose of the information sought, the effect that disclosure will have on the parties and
on the trial, the nature of the objections urged by the party resisting disclosure, and ability
of the court to make an alternative order which may grant partial disclosure, disclosure in
another form, or disclosure only in the event that the party seeking the information
undertakes certain specified burdens which appear just under the circumstances.’
[Citation.]” (Ibid.) Focusing only on the last factor, appellants say, as noted previously,
that the protective order was enough and the limitation on the period of production was
prejudicial error. They have not demonstrated this to be the case, for reasons we shall
show.
                             (a) testimony
                                             (i) of Joan and Valerie
              At trial, Joan testified that she inherited the Alhambra duplex, some stock
and some cash from her mother. Joan could not remember the amount of cash she
inherited. However, she thought it was probably less than $25,000 and maybe even less
than $10,000. She did not remember what she did with the money, except that she
guessed she put it in the bank.
              Valerie, in her testimony, corroborated that Joan had inherited stock from
her mother. Valerie said that she herself had inherited shares of the same stocks and she
identified some of them by name.
              Joan opened the Union Bank account ending in numbers 2711 in 1975
(2711 Account), after she closed her mother’s bank account. Joan was the signatory
shown on the signature card. Joan testified that, on advice of her banker, she opened the
Union Bank account ending in numbers 8892 in 1992 (8892 Account). Again, Joan alone
was the signatory.
              Joan testified that she deposited the rents from the Alhambra duplex into
the Union Bank account she opened in 1975 and she paid the expenses for the Alhambra

                                               25
duplex out of the same account. She further testified that she always kept the books for
the Alhambra duplex separate from the books for the Newport Beach property. She said
she did not write checks for the Alhambra duplex expenses off of any of the Wells Fargo
or Bank of America accounts she held together with Bud.
              Valerie testified that she had been assisting her mother with banking for
about four years, at the time of trial. She said she had been writing the checks for Joan
because her arthritis had gotten severe and it was hard for her to write checks herself.
Valerie explained that Joan would set out the checkbooks and the invoices and “tell [her]
which invoice to pay out of which checkbook.”
              Valerie also testified as to her understanding that the two Union Bank
accounts belonged to Joan. She further testified as to her belief that Bud was aware of
Joan’s Union Bank accounts. She said she believed Bud knew about the accounts
because she had overheard conversations between Bud and Joan.
                                          (ii) of George Lesley
              CPA George Lesley testified that he was hired to analyze the source of the
deposits to and disbursements from the two Union Bank accounts and to perform tracing.
He received bank statements, as well as check and deposit images, for the Union Bank
2711 Account and 8892 Account. He also received “tax organizers” covering the period
of 2001 through 2010, except for 2005. He did not receive copies of Bud and Joan’s tax
returns. Lesley also reviewed certain documentation pertaining to Wells Fargo Bank
accounts, but the scope of that documentation is unclear from the record.
              Based on information he saw in the tax organizers, it appeared to Lesley
that there was a negative cash flow from the Alhambra duplex from 2001 through 2010.
The report he prepared reflected that there were substantial repairs in those years. Lesley
opined that, given the negative cash flow in those years, the Union Bank accounts could
not have been growing based on income from the duplex. However, Lesley
acknowledged that the rental amounts actually deposited did not necessarily correspond

                                             26
with the amounts reflected on the tax organizers and that, in 2010, for example, $20,150
in rents was deposited but only $8,400 in rents was reflected on the tax organizer. He
also acknowledged that he did not know whether rents were collected in the form of
checks or cash.
              Lesley testified that he would have preferred to have received bank
statements much further back in time than what was provided because he was unable to
determine the source of the funds into the Union Bank accounts before May 2009.
Indeed, he had no opinion as to the characterization of the 2711 Account prior to 2009.
                                          (iii) significance
              In light of the foregoing testimony, appellants do not explain how any
information that might have been contained in the Union Bank records from 2005
forward could have excluded the possibility that the Alhambra duplex was operated
profitably from 1972 through 2004, when it was newer and may have required fewer
repairs, and that rents from the duplex provided all or a substantial portion of the sums in
those accounts. They also do not explain how such bank records could have excluded the
possibility that Joan had indeed received from her mother’s estate cash and/or stock that
accounted for a portion of the sums in those accounts. Finally, they do not explain how
such bank records could have excluded the possibility that any community property
contributions to the Union Bank accounts over the years were gifts. Appellants engage in
pure speculation to argue that Joan’s bank records from 2005 forward would have
provided evidence to dispel the separate property characterization. They disagree,
pointing to evidence of commingling and evidence of title.
                            (b) evidence of commingling
              Appellants explain that had they received additional bank records, they may
have been able to show a commingling of community property and separate property
funds. They contend that even the limited records produced showed commingling.



                                             27
              Appellants emphasize that on November 1, 2009, Joan signed a check in
the amount of $713.47, payable to “LA County Tax,” and drawn on a Wells Fargo bank
account. Joan acknowledged that the payment was made with respect to the Alhambra
duplex, although she did not remember why it was drawn on the Wells Fargo account,
inasmuch as she maintained that she never paid any expenses of the Alhambra duplex
from any account other than the Union Bank accounts. Valerie, however, testified that
she wrote out the check and her mother signed it. Valerie further testified that the check
was drawn on the Wells Fargo account because she had “made a mistake.” Valerie
explained that she had picked up the wrong checkbook.
              So, as evidence of “commingling” in the year before Bud died, appellants
point to the tax check Valerie said she mistakenly wrote on the wrong account—a Wells
Fargo account instead of Joan’s Union Bank account. This check may be construed
either as evidence of an error on the part of Valerie and/or Joan or as evidence that,
contrary to Joan’s assertion, she did not pay all Alhambra duplex expenses with funds
from the Union Bank accounts. Either way, the evidence does not show that community
funds were deposited into the Union Bank accounts before Bud’s death.5
              As further evidence of commingling, appellants point to two checks
deposited into the Union Bank 2711 Account after Bud’s death. The first was a check in
the amount of $31,091.78, deposited in August 2010. The check was a United States
Treasury check dated August 20, 2010, payable to Joan. Joan testified that the check was
paid with respect to Bud’s retirement. According to Valerie, she and Joan made inquiries
with respect to the $31,091.78 check after it was received. She said they learned that it



5             If appellants intended to argue that the community should have been
reimbursed for the amount of the check, they should have cited legal authorities in
support of that position, but they did not. The argument is waived. (Roden v.
AmerisourceBergen Corporation, supra, 186 Cal.App.4th at p. 648; Paterno v. State of
California, supra, 74 Cal.App.4th at p. 106.)

                                             28
represented the proceeds of “an annuity from Bud passing away with [Joan] as
beneficiary.”
                Appellants also note that Joan deposited into the 2711 Account a check in
the amount of $104.66, drawn on a Bank of America community property account. That
check was dated June 25, 2010, executed by Joan and payable to herself, and bore the
notation “close account.”
                So, as evidence of commingling in the seven and a half months after Bud
died, appellants draw attention to the $31,091.78 annuity payment made to Joan in
August 2010 and the $104.66 remainder of a Bank of America community property
account on closeout. Query whether these two postdeath deposits in resolution of Bud’s
final affairs have much probative value to show that Joan commingled community and
separate property monies in the Union Bank accounts in the decades before Bud’s death.6
                             (c) evidence of title
                Appellants contend Joan admitted at trial that the Union Bank accounts
were Mahurin Family Trust accounts. We disagree with this characterization of her
testimony.
                Joan was asked to look at the signature cards for the two accounts, opened
in 1975 and 1992. She was asked whether the signature on each card was hers. She
replied, “Yes.” She was then asked, “Was Bud ever on either of these accounts?” She
replied, “No.” Joan was then queried, “Did you put these accounts in your trust?” She
replied, “Yes.” Immediately thereafter she was asked, “You never changed title on the
accounts, correct?” Joan said that was correct.



6              Again, if appellants intended to assert that the community should have been
reimbursed for these monies, they should have provided argument and citation to legal
authority in support of that position, but they did not. The argument is waived. (Roden v.
AmerisourceBergen Corporation, supra, 186 Cal.App.4th at p. 648; Paterno v. State of
California, supra, 74 Cal.App.4th at p. 106.)

                                              29
              Clearly, the last two answers are inconsistent. If Joan never changed title to
the two accounts, then the accounts were always in her name alone, not in the name of
the Mahurin Family Trust. But even if Joan had placed the Union Bank accounts in trust,
this would not have shown that they were no longer her separate property. Section 3.3 of
the Mahurin Family Trust states that all separate property transferred into trust shall
remain separate property.
              Actually, in arguing that the court should have permitted them to obtain
Union Bank records for the time period they desired, appellants simply say they needed
them for tracing purposes. They do not suggest that the records would have shown title
was held in the name of the Mahurin Family Trust during that period of time.
              Indeed, the court found that the Union Bank accounts were Joan’s separate
property. In so finding, the court cited cases having to do with the significance of the
manner of holding title to property: In re Marriage of Lucas (1980) 27 Cal.3d 808, 817-
818 [superseded by statute on another point, as observed in In re Marriage of Walrath
(1998) 17 Cal.4th 907, 914]; In re Marriage of Fossum (2011) 192 Cal.App.4th 336, 344;
and In re Marriage of Brooks & Robinson (2008) 169 Cal.App.4th 176, 184-185. As
observed in In re Marriage of Fossum, supra, 192 Cal.App.4th 336, Evidence Code
section 662 “states, ‘The owner of the legal title to property is presumed to be the owner
of the full beneficial title. This presumption may be rebutted only by clear and
convincing proof.’” (In re Marriage of Fossum, supra, 192 Cal.App.4th at p. 344.)
Appellants do not address the court’s finding, its citations or the presumption.
              To simply argue in a vacuum that they should have had more bank records
for tracing purposes, is to fail to demonstrate prejudicial error, where appellants have not
shown what difference the tracing could have made given the title to the accounts and the
presumption regarding the holding of title. Appellants do not argue that, if only they had
received Union Bank records from 2005 forward, they could have shown by clear and
convincing proof that the bank accounts were community property, notwithstanding the

                                             30
fact that Joan had inherited substantial separate property in the early 1970’s, opened the
first Union Bank account in her name in the 1970’s, and deposited the rents from the
Alhambra duplex into those accounts over a period of decades before 2005.
              To the contrary, appellants merely argue the court committed prejudicial
error because there was “certainly a chance of having reached a More Favorable
Outcome had the” court not limited the records production. (Italics added.) This is not
the standard by which we determine prejudicial error.
              “California’s Constitution provides, ‘No judgment shall be set aside, . . . in
any cause, . . . for any error as to any matter of procedure, unless, after an examination of
the entire cause, including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.’ [Citations.] [¶] ‘“The effect of
this [constitutional] provision is to eliminate any presumption of injury from error, and to
require that the appellate court examine the evidence to determine whether the error did
in fact prejudice the [appellant]. . . .” [Citation.] [¶] The phrase “miscarriage of justice”
has a settled meaning in our law . . . . Thus, “a ‘miscarriage of justice’ should be
declared only when the court, ‘after an examination of the entire cause, including the
evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of the error.” [Citation.]’”
(Conservatorship of Maria B., supra, 218 Cal.App.4th at p. 532, italics added.) “[T]he
appellant bears the burden to make an ‘affirmative showing’ the trial court committed
error and that error resulted in a miscarriage of justice. [Citations.]” (Id. at pp. 532-533.)
Appellants have not shown “it is reasonably probable that a result more favorable to”
them would have been reached if only they had received the Union Bank records from
2005 forward. (Id. at p. 532.)




                                             31
F. Attorney Fees:
              Appellants claim, without citation to the record, that the court erred in
permitting Joan to charge to the exemption trust half of the attorney fees she incurred in
the litigation. We could stop here and say the argument is waived for failure to cite the
record. (Roden v. AmerisourceBergen Corporation, supra, 186 Cal.App.4th at p. 634.)
However, inasmuch as Joan provides the needed record references, we will address the
issue.
              At trial, Valerie testified that, in assisting Joan, she had been charging half
of the litigation expenses to the exemption trust, pursuant to the instructions of Attorney
Blied. The court held that charging half of the fees to the exemption trust was proper. Its
decision was “based upon the testimony of the experts, Messrs. Deily and Westover, and
the Trust provisions.”
              Appellants fail to address either the testimony of the expert witnesses on
the topic or the provisions of the Mahurin Family Trust bearing upon the availability of
attorney fees. However, they say that charging half of the fees to the exemption trust was
improper because the litigation arose with respect to the original trust split, the retraction
of the original trust split coupled with the concealment of the Union Bank accounts, and
Joan’s petition to reform the Mahurin Family Trust so that she could invade the principal
of the exemption trust. Appellants say none of these things benefitted the Mahurin
Family Trust and all of them benefitted Joan at the expense of themselves.
              In support of their position, they cite only one authority—Whittlesey v.
Aiello (2002) 104 Cal.App.4th 1221. In that case, the court denied an award of attorney
fees to counsel for an individual who was both the trustee and a beneficiary and who
defended litigation challenging a trust amendment that named her as the primary
beneficiary. The plaintiff, a different beneficiary, succeeded in having that trust
amendment declared invalid, with the result that she, the plaintiff, was restored as the
primary beneficiary. (Id. at pp. 1228, 1230.) The court held that for the attorney fees of

                                              32
the unsuccessful defendant to be charged to the trust would be, in effect, to require the
prevailing party to finance the litigation of the losing party. (Id. at p. 1230.) But here,
Joan, as trustee, was successful in her attempt to obtain clarification of the terms of the
Mahurin Family Trust and appellants were unsuccessful in their attempt to show Joan had
breached her fiduciary duty to them.
               As stated in Whittlesey v. Aiello, supra, 104 Cal.App.4th 1221, “Allowance
of litigation expenses rests in the sound discretion of the trial court, whose ruling will not
be disturbed on appeal absent an abuse. [Citation.] ‘The underlying principle which
guides the court in allowing costs and attorneys’ fees incidental to litigation out of a trust
estate is that such litigation is a benefit and a service to the trust.’ [Citation.]
Consequently, where the trust is not benefited by litigation, or did not stand to be
benefited if the trustee had succeeded, there is no basis for the recovery of expenses out
of the trust assets.” (Id. at p. 1230.)
               Here, the litigation served to obtain a clarification of the terms of the
Mahurin Family Trust, which the expert witnesses said were confusing, very poorly
drafted and contradictory. The trial court impliedly found that this clarification
benefitted the trust (Virtanen v. O’Connell, supra, 140 Cal.App.4th at p. 709 [we imply
findings to support the judgment]) and we agree. The litigation also resulted in the
correction of a faulty trust split, to the extent that the appellants’ filing of their petition
prompted Joan to obtain new counsel who opined that her prior counsel had erred in
preparing the trust split. To the extent this result is characterized as a benefit only to
appellants, and not to the Mahurin Family Trust, we do not know what portion of the fees
was generated on account of this topic. (See Graciano v. Robinson Ford Sales, Inc.
(2006) 144 Cal.App.4th 140, 157 [dilution of attorney fees not always required, where
apportionment not feasible].) For that matter, we do not even know whether the attorney
fees incurred with respect to the initial trust split and the retraction were among those
fees charged 50 percent to the exemption trust.

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              Moreover, as Whittlesey v. Aiello, supra, 104 Cal.App.4th 1221 also
provides: “‘A trustee is entitled to the repayment out of trust property for the following:
[¶] (a) Expenditures that were properly incurred in the administration of the trust. [¶] (b)
To the extent that they benefited the trust, expenditures that were not properly incurred in
the administration of the trust.’ (Prob. Code, § 15684.) . . . ‘[W]here litigation is
necessary for the preservation of the trust, it is both the right and duty of the trustee to
employ counsel in the prosecution or defense thereof, and the trustee is entitled to
reimbursement for his expenditures out of the trust fund.’ [Citation.] ‘If the trustee acts
in good faith, he has the power to employ such assistants and to compensate such
assistants out of the assets of the trust even though he may not ultimately succeed in
establishing the position taken by him as such trustee.’ [Citation.]” (Whittlesey v. Aiello,
supra, 104 Cal.App.4th at pp. 1226-1227.)
              Here, Joan as the surviving spouse and trustee, was responsible for
accomplishing the trust split on Bud’s death. It was proper for Joan, as trustee, to hire
Attorney Kelsall to prepare the trust split, even though he appears not to have done a
good job of it. It was also proper for her to consult a second attorney about the trust split
when she was sued over the trust split prepared by the first attorney. When the second
attorney, Attorney Blied, prepared both a retraction of the first trust split, and a second
trust split together with an inventory, it was for the benefit of the Mahurin Family Trust.
This is true even though the second trust split may also have benefitted appellants more
than other beneficiaries. Anyway, these expenditures were “properly incurred in the
administration of the trust,” within the meaning of Probate Code section 15684. We
cannot say that the court abused its discretion to the extent that some of the attorney fees
incurred in connection with the initial or revised trust splits may have been charged under
the umbrella of litigation expenses—a matter we do not know in any event. (Cf.
Graciano v. Robinson Ford Sales, Inc., supra, 144 Cal.App.4th at p. 157.)



                                              34
              It is appellants’ burden to show error. (Virtanen v. O’Connell, supra, 140
Cal.App.4th at p. 710.) They have not met their burden.
              As a final point, we note Joan requests that we authorize the trial court to
entertain a further motion for attorney fees she intends to file on remand. The trial court
is so authorized. (Prob. Code, § 15684.)
                                             III
                                      DISPOSITION
              The judgment is affirmed. Respondent shall recover her costs on appeal.




                                                   MOORE, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.




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