Filed 8/8/13 Douglas v. Douglas CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


E. SCOTT DOUGLAS et al.,                                                 B236217

         Plaintiffs and Appellants,                                      (Los Angeles County
                                                                         Super. Ct. No. YP010736)
         v.

DEREK B. DOUGLAS,

         Defendant and Appellant.




         APPEAL from orders of the Superior Court of Los Angeles County, Michael P.
Vicencia and Dudley W. Gray II, Judges. Affirmed in part and reversed in part.
         Hitchcock, Bowman & Schachter, Robert Schachter; and Robert D. Feighner for
Plaintiffs and Appellants.
         Burkley & Brandlin, Walter R. Burkley, Jr.; Broedlow Lewis, Jeffrey Lewis and
Kelly Broedlow Dunagan for Defendant and Appellant.
                                        _________________________
       After his father died, appellant Derek B. Douglas became his mother’s adviser,
and his brothers believed Derek1 exerted undue influence over their mother. This matter
stems from benefits Derek received when their mother, Eva Maria Douglas, acted as the
sole trustee of the Douglas Family Trust (Douglas Trust).
       Following their father’s death, the Douglas Trust was divided into two trusts,
designated as the Survivor’s Trust (Trust A) and the Exemption Trust (Trust B). The
couple’s residence became a Trust B asset. Under the terms of the Douglas Trust, if Eva
Maria acted as the sole trustee, she had no authority to invade the principal of Trust B.
While acting as sole trustee, Eva Maria used the residence, a Trust B asset, as collateral
to obtain approximately $875,000 in loans. Derek, to the exclusion of his brothers,
directly or indirectly received the benefits from some of these loans.
       Eva Maria also amended the Douglas Trust to appoint Derek successor trustee. In
a Second Amendment to the Douglas Trust, Eva Maria granted a conditional gift of
industrial property, a Survivor’s Trust (Trust A) asset, to Derek that previously would
have been shared equally among her four sons.
       When Eva Maria unexpectedly died, Derek briefly acted as successor trustee. His
brothers had him removed and filed petitions in the probate court to recoup Douglas Trust
assets from him. The probate court granted in part and denied in part Derek’s brothers’
petitions. Derek challenges three rulings: (1) Derek must pay $250,000, plus interest at
10 percent, to the Exemption Trust (Trust B) that he received as a death benefit;
(2) Derek must pay $200,000, plus interest at 10 percent, to the Exemption Trust
(Trust B) that was used to improve the industrial property conditionally gifted to him; and
(3) Derek was not entitled to the rental income from the industrial property upon Eva
Maria’s death. As shall be explained, we conclude the court erred in awarding
prejudgment interest on its rulings requiring Derek to pay $250,000 and $200,000 to the
Exemption Trust (Trust B). We otherwise affirm.


1
       We refer to the family members by their first names for purposes of clarity and not
out of disrespect. (Moore v. Shaw (2004) 116 Cal.App.4th 182, 186, fn. 2.)

                                             2
       Derek’s brothers also challenge three rulings: (1) Derek had no obligation to pay
the Douglas Trust pursuant to a shared equity agreement between Derek and his parents;
(2) Derek’s acceptance and disclaimer of the conditional gift of industrial property was
valid once the court interlineated objectionable language; and (3) Derek was entitled to
rental income for the period after he accepted the conditional gift but before the court
interlineated the objectionable language in the disclaimer. We conclude the court erred in
its rent allocation. We otherwise affirm.
                                            FACTS
   1. The Douglas Family Trust
       In 1992, Eva Maria and Riley executed the declaration of trust for the Douglas
Trust. The Douglas Trust provided upon the death of the surviving spouse, all trust assets
would be divided equally among their four sons, Randall, E. Scott (Scott), Derek, and
Garret.
   2. Survivor’s Trust (Trust A) and Exemption Trust (Trust B)
       Riley died in 2002. Upon the death of the first spouse, the Douglas Trust
instructed the trustee to divide the trust estate into two separate trusts, designated as Trust
A, referred to as the “Survivor’s Trust,” and Trust B, referred to as the “Exemption
Trust.”
       a. Survivor’s Trust (Trust A)
       The Survivor’s Trust (Trust A) consisted of the share of the community property
belonging to Eva Maria, the surviving spouse, her separate property, and the balance of
the trust property not allocated to the Survivor’s Trust (Trust A) or the Exemption Trust
(Trust B). The Survivor’s Trust (Trust A) was revocable, and Eva Maria had the power
as trustee to manage these assets without any obligation or duty to any other person.
Upon death, the assets of the Survivor’s Trust (Trust A) would be distributed as directed
in the Douglas Trust, unless Eva Maria amended the Survivor’s Trust (Trust A) to
provide for a different distribution of the assets.




                                               3
         One of the assets of the Survivor’s Trust (Trust A) was industrial property located
at 16400 South Garfield Avenue, Paramount, California (Paramount) valued at
approximately $1.3 million.
         b. Exemption Trust (Trust B)
         The Exemption Trust (Trust B) became irrevocable upon Riley’s death. The
primary purpose of Trust B was to remove $1 million from estate taxation. One of the
assets of the Exemption Trust (Trust B) was the couple’s residence located at 449 29th
Street, Manhattan Beach, California (Residence) valued at $940,000 and owned free and
clear.
         Section 4.062 of the Douglas Trust states: “[I]n the event the surviving spouse is
acting as the sole Trustee, then said surviving spouse shall have no discretionary right to
invade the principal of Trust B.”
   3. Douglas Trust Amendments and Eva Maria’s Actions as Sole Trustee
         a. First and Second Amendments to the Douglas Trust
         In January 2003, Eva Maria executed an amendment to section 7.01 of the
Douglas Trust, providing that upon her death, Derek would act as successor trustee,
replacing Randall as successor trustee (First Amendment).
         In March 2008, Eva Maria executed an amendment to the Survivor’s Trust
(Trust A) by amending section 4.063 of the Douglas Trust (Second Amendment). The
Second Amendment states: “The real property located at 16400 South Garfield Avenue,
Paramount, California shall be distributed to the surviving settlor’s son, Derek B.
Douglas, but only upon execution by Derek B. Douglas of a valid disclaimer of all other
assets held in this Trust A and all assets held in Trust B, also known as the Riley E.
Douglas Exemption Trust, Dated December 4, 1992.” (Capitalization omitted.)
         b. Loans Using Residence (Exemption Trust Asset) as Collateral
         While acting as sole trustee, Eva Maria obtained loans against the Residence, an
Exemption Trust (Trust B) asset. When Eva Maria died, the Residence was encumbered
with approximately $875,000 in loans. Three loans are at issue in this case.


                                              4
              (1).   Loan to Invest in Rental Property
       After Riley’s death, Eva Maria acquired title to 444 36th Street in Manhattan
Beach, California (Rental). She obtained a loan of more than $400,000, against the
Residence to invest into the Rental property. Eva Maria executed a document in May
2009, stating she “decided that all proceeds from the sale of 444 36th Street, Manhattan
Beach, California 90266, should go to my son Derek as soon as this property sells.” The
net proceeds from the sale ($1,175,000) were placed into a 1031 exchange account.2
              (2).   $250,000 Loan and Paramount Property Improvements
       Eva Maria obtained a $250,000 loan, using the Residence as collateral. Some of
this money was used to improve the Paramount property, which was a conditional gift to
Derek under the terms of the Second Amendment.
              (3).   Home Equity Line of Credit (HELOC loan)
       Eva Maria obtained a home equity line of credit (HELOC) in the amount of
$250,000. She used the funds to establish a Fidelity securities trading account for
Derek’s day trading. Eva Maria designated Derek as the payable-on-death beneficiary of
the Fidelity securities trading account. After Eva Maria’s death, the money was
transferred to Derek’s account.
    4. Derek’s Shared Equity Agreement (SEA) to Purchase the Hermosa Property, and
       Eva Maria’s Gift to Remodel the Hermosa Property
       Riley and Eva Maria entered into a shared equity agreement (SEA) with three of
their sons to provide them with the initial funds for a down payment to purchase a home.
As consideration for the down payment, Riley and Eva Maria received a proportionate
share of the equity when the property was sold.




2
       Derek testified he was going to use the net proceeds from the Rental property,
along with the proceeds from the sale of two other properties he owned, to buy a
residential rental property in Beverly Hills.

                                            5
       In 1992, Derek entered into an SEA.3 Derek and his then-girlfriend borrowed
$75,437.50 from his parents to use as part of the down payment for the property located
at 2540 Manhattan Avenue, Hermosa Beach, California that was purchased for $452,000
(Hermosa). In consideration for the loan, Riley and Eva Maria obtained a 16.7026
percent interest in the Hermosa property.
       In 1993, Derek’s now ex-girlfriend signed a quitclaim deed. A grant deed was
recorded indicating Riley’s and Eva Maria’s interest in the property as reflected in the
SEA.
       Derek testified that he executed a promissory note to pay his parent’s back the
down payment, which replaced his obligation under the SEA. Derek could not remember
how much he paid to his parents. Derek testified that he paid off the note in 2001. He
had no canceled checks or any documents signed by his parents that indicated he
executed a promissory note and paid the note in full.
       In January 2001, his parents signed a grant deed conveying their interest in the
Hermosa property to Derek. Derek testified that his parents were taken off title when he
paid off the promissory note.
       Eva Maria gave Derek money to extensively remodel the Hermosa property. It
sold in 2009 for $2,100,000.
    5. Eva Maria’s Untimely Death
       Eva Maria died on August 16, 2009. Upon her death, Derek’s brothers believed
Eva Maria, while acting as the sole trustee of the Douglas Trust, favored Derek and acted
contrary to the terms and intent of the trust instrument. Derek was removed as the
successor trustee, and Derek’s brothers filed petitions in the probate court to resolve their
dispute over trust assets.


3
       At the outset of the trial, the court asked whether Derek’s SEA was a Douglas
Trust asset. Derek’s brothers’ attorney responded: “Your honor, the will provides
everything gets thrown into the trust. And I contemplated filing a probate. I was hoping
it would be unnecessary to do so because it ends up in the trust.” Thereafter, the parties
proceeded to try this issue as part of the case.

                                              6
                           PROBATE COURT PROCEEDINGS
    1. The First Amended Petition
       Randall, Scott, and Garret initially filed a petition,4 seeking a determination
regarding the validity of the Second Amendment to the Douglas Trust, seeking an order
to return loan proceeds that devalued the Residence, and ordering Derek to pay to the
Douglas Trust the equity owed under his SEA following the sale of the Hermosa
property. The petition alleged that Derek benefited from the loans obtained using the
Residence as collateral, which included the outright gift of $250,000 as a death benefit,
the use of $250,000 loan proceeds to improve the Paramount property, and the loan to
improve the Rental property.
       Granted leave to amend, the first amended petition alleged seven causes of action
(Petition). Before trial, Derek’s brothers withdrew the third and sixth causes of action.
The case proceeded to trial on the following causes of action seeking orders: (1) to
compel Derek to repay the $250,000 death benefit (first cause of action); (2) to compel
Derek to repay loan proceeds used for the Paramount property improvements (second
cause of action); (3) to enforce Derek’s SEA (fourth cause of action); (4) to determine the
validity of the Second Amendment (fifth cause of action); and (5) to determine whether
as successor trustee Derek breached his fiduciary duty (seventh cause of action).
       After a two-day court trial, the court granted and denied the Petition (June 29,
2011 order). For purposes of this appeal and cross-appeal, the trial court granted the first


4
        Probate Code section 17200 states in part: “(a) Except as provided in Section
15800, a trustee or beneficiary of a trust may petition the court under this chapter
concerning the internal affairs of the trust . . . . [¶] (b) Proceedings concerning the internal
affairs of a trust include, but are not limited to, proceedings for any of the following
purposes: [¶] . . . [¶] (12) Compelling redress of a breach of the trust by any available
remedy.”
        Probate Code section 17000, subdivision (b)(3) states: “The superior court having
jurisdiction over the trust pursuant to this part has concurrent jurisdiction of the
following: [¶] . . . [¶] (3) Other actions and proceedings involving trustees and third
persons.”
        Unless indicated, all further statutory references are to the Probate Code.

                                               7
and second causes of action, ordering Derek to pay to the Exemption Trust (Trust B)
$250,000, plus interest at the rate of 10 percent per annum, and to pay the Exemption
Trust (Trust B) $200,000, plus interest at the rate of 10 percent per annum, used for
improvements to the Paramount property. The court denied the fourth cause of action
seeking to enforce Derek’s SEA, and granted nonsuit on the claims that the Second
Amendment was procured by undue influence and breach of fiduciary duty.
    2. Petition Filed Following Derek’s Disclaimer Under the Second Amendment
       Two weeks after the court’s June 29, 2011 order on the Petition, Derek executed a
disclaimer. The disclaimer states: “I, Derek B. Douglas, as a prerequisite to receiving a
gift from Trust A of the Douglas Trust, dated December 4, 1992, (hereinafter ‘TRUST
A’) as amended by that certain 2nd Amendment to Trust A of the Douglas Trust dated
December 4, 1992, which was executed by Eva Maria Douglas on March 22, 2008,
hereby irrevocably and without qualification disclaim any and all right, title or interest in
all other assets held in Trust A (except with respect to the proceeds from the sale of that
certain property at 444 36th Street, Manhattan Beach, CA. [sic], that were given to me by
Eva Maria Douglas, but still remain in the Trust), and also all assets held in Trust B of the
Douglas Trust dated December 4, 1992, also known as the Riley E. Douglas Exemption
Trust, dated December 4, 1992.”5
       In response to Derek’s disclaimer, Randall and Scott filed a petition seeking court
orders to: (1) determine the validity of the disclaimer; (2) set a date for Derek to execute
a valid and unconditional disclaimer; and (3) determine the rights to the rental income
from the Paramount property (Disclaimer Petition).
       In ruling on the Disclaimer Petition, the court determined the disclaimer dated
July 14, 2011 (cited above), was not valid because it failed to disclaim any right to the net
proceeds of the Rental property (March 7, 2012 order). The court, however, interlineated
the offending language at the December 21, 2011 hearing. Thereafter, the court
5
      In July 2011, shortly after signing the disclaimer, Derek filed a petition for
recovery of the net proceeds from the sale of the Rental property. Derek’s petition was
denied.

                                              8
determined the disclaimer was valid as of July 14, 2011, the date of execution, and Derek
was entitled to Paramount rental income from that day forward. The court rejected
Derek’s position that, upon executing the disclaimer, he was entitled to Paramount rental
income from August 16, 2009 (the date of Eva Maria’s death) forward.
    3. Appeal and Cross-Appeal
       Derek filed a notice of appeal from the June 29, 2011 order, challenging the
rulings on the first and second causes of action.6 He also filed an appeal from the
March 7, 2012 order, challenging the court’s determination regarding the Paramount rent
allocation.
       Attorneys for Scott and Randall filed a cross-appeal from the June 29, 2011 order,
challenging the ruling on the fourth cause of action seeking to enforce Derek’s SEA.
They also filed a cross-appeal from the March 7, 2012 order, challenging the court’s
authority to interlineate Derek’s disclaimer.7 The appeals and cross-appeals have been
consolidated.
                                      DISCUSSION
A. Derek’s Appeal
       Derek advances four claims of error. First, the court erred in ordering him to pay
the $250,000 death benefit plus interest to the Exemption Trust (Trust B) because Eva
Maria, acting as the trustee of the Douglas Trust, had express authority to borrow assets
from the trusts. Second, no substantial evidence supports the court’s order requiring him
to pay $200,000 plus interest to the Exemption Trust (Trust B) for the Paramount
property improvements. Third, if he is required to pay back the Exemption Trust
(Trust B), the court erred in awarding prejudgment interest. Fourth, pursuant to the
relation back doctrine, the court should have awarded him the Paramount rental income

6
       A final order pursuant to section 17200, subject to exceptions not applicable here,
is appealable. (§ 1304; Code Civ. Proc., § 904.1, subd. (a)(10).)
7
       Garret’s notice of substitution replacing his attorney and proceeding in pro per
was filed with the court on July 14, 2011. The brothers’ briefs on appeal are filed on
behalf of Randall, Scott, and Garret.

                                             9
beginning in August 2009. We discuss each contention in turn, concluding only the third
one has merit, that is, the court erred in awarding prejudgment interest.
    1. The Court Did Not Err in Requiring Derek to Pay the $250,000 Death Benefit to
       the Exemption Trust (Trust B)
       Derek argues the court erred in concluding that he was obligated to pay the
$250,000 death benefit he received to the Exemption Trust (Trust B) because the Douglas
Trust specifically gave the trustee (Eva Maria) the power to borrow and conduct
transactions between trusts. This argument misreads the trust instrument.
       In construing the trust instrument, we must ascertain and give effect to the settlor’s
intent as expressed in the language of the trust. (Kropp v. Sterling Sav. & Loan Assn.
(1970) 9 Cal.App.3d 1033, 1044-1045; see also § 21102, subd. (a) [“The intention of the
transferor as expressed in the instrument controls the legal effect of the dispositions made
in the instrument”].) “ ‘[T]he guiding principle must be the intention of the settlor–his
intention as expressed. Not, What did he intend to say? but, What did he intend by what
he did say? must be the test.’ ” (Kropp v. Sterling Sav. & Loan Assn., supra, at pp. 1044-
1045.) Stated another way: “The paramount rule in the interpretation of a testamentary
instrument is that it must be construed according to the intention of the testator as
expressed therein.” (Cook v. Cook (2009) 177 Cal.App.4th 1436, 1441.) Interpretation
of a trust is a question of law that we independently review. (Ibid.)
       Section 4.062 of the Douglas Trust limited the trustee’s power upon the death of
the predeceased spouse if the surviving spouse acted as the sole trustee.8 Specifically, “in
the event the surviving spouse is acting as sole Trustee, then said surviving spouse shall
have no discretionary right to invade the principal of Trust B.” Thus, under the terms of
the Douglas Trust, Eva Maria had no power to obtain loans against the Residence, an


8
       Derek’s counsel incorrectly refers to Eva Maria as the pre-deceased spouse when
construing section 4.06. In section 4.02, the Douglas Trust defines “pre-deceased
spouse” as the death of the first of the settlors. Riley and Eva Maria were referred to in
the trust instrument as “settlors.” Thus, Riley, is the pre-deceased spouse, as he died first,
and Eva Maria became the surviving spouse.

                                             10
asset of the Exemption Trust (Trust B). Moreover, pursuant to the terms of the Douglas
Trust, Eva Maria, acting as sole trustee of the Exemption Trust (Trust B), had no power
to distribute $250,000 obtained from the HELOC loan to Derek. The Exemption Trust
(Trust B) became irrevocable upon Riley’s death, and could not be altered, amended, or
revoked by the surviving spouse. Under the trust instrument, all four sons were to obtain
an equal share.
       Derek identifies two sections of the Douglas Trust that he contends gave Eva
Maria broad discretion when acting as sole trustee of the Exemption Trust (Trust B) to
obtain the HELOC loan and to designate him as the beneficiary of the Fidelity account.
Sections 5.05 and 5.18 give the trustee general powers to borrow money and encumber
trust property, and to loan or advance money, in the trustee’s discretion. These powers
are contained in Article V of the Douglas Trust, which states: “To carry out the purposes
of any trust created under this instrument, and subject to any additions or limitations
stated elsewhere in this trust agreement, the Trustee is vested with the following powers
with respect to the trust estate and any part of it, in addition to those powers now or
hereafter conferred by law.” (Italics added.) The limitations stated elsewhere, include,
section 4.062, which prevented Eva Maria, acting as sole trustee, from invading the
principal of the Exemption Trust (Trust B). Thus, Eva Maria had no power to use the
principal asset of the Exemption Trust (Trust B) to obtain the HELOC loan.
Accordingly, Eva Maria breached the terms of the Douglas Trust.
       Derek next contends that despite the breach, he should not be required to pay the
death benefit to the Exemption Trust (Trust B). In support of this contention, Derek cites
section 16440, contending that if a trustee commits a breach of trust, the trustee is
chargeable with making the trust whole. Thus, he concludes the Survivor’s Trust
(Trust A) is obligated to repay the Exemption Trust (Trust B). Derek’s conclusion
overlooks statutory provisions that permit beneficiaries to bring an action to trace trust
property.
       Section 16420 permits a beneficiary to commence a proceeding to set aside a
trustee’s action, and subject to the rights of a third party acting in good faith, to trace trust

                                               11
property that has been wrongfully disposed of and to recover the property or its proceeds.
(§ 16420, subd. (a)(9).) In Estate of Bowles (2008) 169 Cal.App.4th 684, the court stated
a trust beneficiary can pursue a cause of action against a third party who actively
participates in or knowingly benefits from a trustee’s breach of trust. (Id. at pp. 692-694;
see also King v. Johnston (2009) 178 Cal.App.4th 1488, 1500.)
       Derek argues that the rule enunciated in Estate of Bowles, supra, 169 Cal.App.4th
684, does not apply because the court declined to make any findings that Derek actively
participated in Eva Maria’s breach of trust. The statement of decision reads: “The court
finds that Petitioners are not obligated to prove that the recipient of the proceeds of the
Home Equity Line of Credit, Respondent Derek Douglas, participated in the breach of
trust or had notice that Mrs. Douglas was committing a breach of trust. Therefore, the
court does not make any factual findings on that issue.”
       Here, however, there was substantial evidence that Derek knowingly benefited
from Eva Maria’s breach of trust, a finding not addressed in the statement of decision.
(See SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452,
462.) Derek was his mother’s adviser following Riley’s death, Derek replaced his
brother as successor trustee, and Derek was conditionally given property that was a trust
asset and would have been divided among all four sons under the Douglas Trust. Eva
Maria also made loans from the trust to Derek. At Derek’s suggestion, Eva Maria’s
attorney fully explained the limits of her authority when acting as the sole trustee of the
Douglas Trust, from which the reasonable inference can be drawn that Derek had some
knowledge of the terms of the Douglas Trust and Eva Maria’s authority while acting as
sole trustee. While Eva Maria acted as sole trustee, Derek also was involved in managing
Douglas Trust assets. Based upon this evidence, a reasonable inference can be drawn that
Derek knew Eva Maria’s authority to act and benefited from her breach of trust when she
obtained the HELOC loan. Thus, substantial evidence supports the court’s order
requiring Derek to pay the $250,000 death benefit he received to the Exemption Trust
(Trust B).


                                             12
   2. The Court Did Not Err in Requiring Derek to Pay $200,000 to the Exemption
       Trust (Trust B) for the Paramount Property Improvements
       Derek next contends the court erred in concluding he had to pay $200,000 to the
Exemption Trust (Trust B) for the Paramount property improvements because there is no
substantial evidence to show the actual improvement costs. Eva Maria obtained a
$250,000 loan secured by the Residence, an Exemption Trust (Trust B) asset, and Derek
admitted that “some money [had] been borrowed against the residence to improve
Paramount.” Thus, the substantial evidence question presented here turns on whether
these loan proceeds can be traced to the Paramount property improvements.
       We review the sufficiency of the evidence in favor of the prevailing party.
Substantial evidence must be reasonable, credible, and of solid value. (Kuhn v.
Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633.) Substantial
evidence also may consist of inferences, but “such inferences must be ‘a product of logic
and reason’ and ‘must rest on the evidence’ [citation] . . . .” (Id. at p. 1633.)
       Despite evidence from two witnesses that Derek said $250,000 was used to
improve the Paramount property, the court made a finding that there was insufficient
evidence to trace all of the $250,000 loan proceeds to the Paramount property
improvements. This appeared to be in large part because no financial records existed,
and the brothers had to rely on Derek’s recollection to trace the loan proceeds.
       Derek testified he hired the general contractor for the Paramount property
improvements and oversaw the project. Although repeatedly asked, Derek would not
estimate the cost of these improvements. Finding Derek’s testimony lacked credibility,
the court asked a series of questions regarding the specific improvements. Derek testified
the improvements were extensive. From Derek’s testimony, the court determined at least
$250,000 was spent to improve the Paramount property. The court, however, credited
additional testimony related to Eva Maria’s financial and business affairs, and made a
finding that only $200,000 could be traced to the loan proceeds. The court’s inferences
are a product of logic and reason and rested on the evidence. Moreover, given Derek’s
involvement with the project and his election to receive the Paramount property, Derek

                                              13
bore the risk of the uncertainty he created. We conclude there is no basis to overturn the
court’s order requiring Derek to pay $200,000 to the Exemption Trust (Trust B).
    3. The Court Erred in Awarding Prejudgment Interest
       In addition to ordering Derek to pay the Exemption Trust (Trust B), the court also
awarded prejudgment interest. Derek contends there is no statutory basis to award
prejudgment interest, and, even if prejudgment interest were proper, the interest rate was
too high. We agree with Derek that the court erred in awarding prejudgment interest.
       Section 16440 permits an interest award, but the statute only applies to actions
brought against trustees. Section 16440, subdivision (a)(1) reads: “(a) If the trustee
commits a breach of trust, the trustee is chargeable with any of the following that is
appropriate under the circumstances: [¶] (1) Any loss or depreciation in value of the trust
estate resulting from the breach of trust with interest.” (Italics added.) This statute does
not apply.
       Section 16420 lists nonexclusive remedies for a breach of trust. Subdivision (a)(9)
of section 16420 authorizes an action by a beneficiary against a third party to trace trust
property that has been wrongfully disposed of and to recover the property or its proceeds.
The brothers’ petition sought this equitable remedy, which does not explicitly include
interest.
       Derek’s brothers counter with a citation to section 16420, subdivision (b), which
states the remedies in subdivision (a) do not “prevent resort to any other appropriate
remedy provided by statute or the common law.” They argue that the “ ‘res’ in each
instance was money, specifically a loan obtained improperly against the Exemption Trust
in this instance.” Although this argument is far from clear, the brothers’ petition did not
seek a money judgment; their only claim for relief was an equitable one under section
16420, subdivision (a)(9) to trace the trust property.9 Thus, there was no legal basis to
award prejudgment interest.


9
       In their brief, the brothers do not cite to or rely on Civil Code section 3287, rather
than section 16440, as an alternative statutory basis to award prejudgment interest. In
                                             14
     4. The Court Did Not Err in its Allocation of Paramount Property Rental Income
        Derek contends that although he executed the disclaimer on July 14, 2011, based
upon the relation back doctrine, he is entitled to the rent from the Paramount property
upon Eva Maria’s death. We disagree.
        Section 282, subdivision (a) states in pertinent part: “A disclaimer relates back for
all purposes to the date of the death of the creator of the disclaimed interest or the
determinative event, as the case may be.” (Italics added.) Because the relation back
doctrine states in the disjunctive “or,” this is a case where the determinative event
triggers the doctrine. Here, the determinative event, by the terms of the Second
Amendment, was acceptance of the conditional gift. Until Derek satisfied the conditions
in the Second Amendment, that is, accepted the gift and disclaimed all other assets in the
Douglas Trust, Derek was not entitled to all of the rent from the Paramount property.
Under the terms of the Douglas Trust, he shared equally with his brothers the rent and
liabilities of the Paramount property.
        Derek appears to argue in the alternative that he would have executed the
disclaimer upon Eva Maria’s death but for this action.10 It is Derek’s position that had he
accepted the conditional gift and executed a disclaimer, the disclaimer would have been
irrevocable even if the court determined the Second Amendment was invalid.11 Derek
misreads the trust instrument and the Second Amendment.



any event, Civil Code section 3287 applies to an award of damages, which were not
awarded in this proceeding.
10
        The court that ruled on the Petition denied Derek’s brothers’ attempt to force
Derek to execute the disclaimer before a judicial determination on the Petition. The court
that ruled on the Disclaimer Petition did not agree that a judicial determination was
required before Derek could accept the conditional gift in the Second Amendment.
Derek inexplicably argues the principles of collateral estoppel apply to bar the second
court from expressing this opinion. His argument is legally incorrect and meritless.
11
        In support of his argument, Derek relies on a number of out-of-state cases that
stand for the proposition that a disclaimer is irrevocable. We do not rely on these out-of-
state cases. Section 281 states: “A disclaimer, when effective, is irrevocable and binding
                                              15
       The Second Amendment is a conditional gift to Derek, stating the Paramount
property shall be distributed to him “but only upon execution . . . of a valid disclaimer of
all other assets held in this Trust A and all assets held in Trust B . . . .” (Capitalization
omitted.) Here, the terms of the Second Amendment and the intent of the settlor are
clear, unless Derek accepted the gift, by disclaiming all the remaining assets in the
Douglas Trust, Eva Maria meant to make no gift to him. Conversely, the disclaimer was
conditional upon receiving the gift of the Paramount property.
       Derek’s disclaimer acknowledges it is dependent upon receiving the Paramount
property, stating it is “a perquisite to receiving a gift from Trust A of the Douglas Trust.”
Nothing prevented Derek from accepting the conditional gift in March 2008 when Eva
Maria signed the Second Amendment, long before this action commenced.12 Thus, the
court did not err in determining that Derek was entitled to Paramount property rental
income upon the execution of a valid disclaimer.
B. The Cross-Appeal
       In their cross-appeal, Derek’s brothers advance three claims of error. First, they
contend there was no substantial evidence to support the court’s finding that Derek paid
off the promissory note and did not owe the Douglas Trust money pursuant to his SEA
upon the sale of the Hermosa property. Second, the court had no authority to interlineate
Derek’s July 14, 2011 disclaimer. Third, the Paramount property rent allocation should
not relate back to July 14, 2011 because the court determined the disclaimer was invalid
until the December 21, 2011 interlineations. We discuss each contention in turn,
concluding the third contention has merit, that is, the court erred in allocating the
Paramount property rental income.



upon the beneficiary and all persons claiming by, through, or under the beneficiary,
including creditors of the beneficiary.”
12
       Derek’s reliance on section 279 to support his argument is misplaced. Section
279, subdivision (c)(3) is a conclusive presumption regarding the reasonable time within
which to file a disclaimer, not the effect of a disclaimer.

                                               16
   1. Substantial Evidence Supports the Court’s Conclusion that Derek Did Not Owe
       Money Under The Shared Equity Agreement
       As a preliminary matter, Derek contends that because his SEA was not a trust
asset, his brothers lacked standing to enforce the agreement. Lack of standing is not
waived by the failure to timely object and can be raised at any time, even for the first
time on appeal. (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1604.) Having
raised the issue, we conclude Derek’s brothers have standing to petition the court because
the SEA was believed to be a trust asset. Although Derek’s SEA was not listed as a trust
asset in the allocation prepared after Eva Maria’s death, representations to the court
indicated that the settlors intended that all of the Douglas’s assets were to be held in trust.
While acting as successor trustee, Derek listed Garret’s SEA as a trust asset. It follows
that Derek’s SEA, assuming the obligation still existed, also should have been listed as a
trust asset.
       Derek’s brothers contend there is no evidence in the record to support Derek’s
position that their parents’ rights under his SEA had been extinguished by the payment in
full of a promissory note. Specifically, his brothers argue Derek failed to offer any
evidence that his parents agreed to the buyout, or Derek actually made the payments.
This argument presents the facts in the light most favorable to Derek’s brothers, and
ignores conflicting evidence the court relied upon to reach its conclusion.
       Under the substantial evidence standard of review, the issue is not whether there is
evidence in the record to support a different finding, but whether there is some evidence,
if believed, that would support the findings of the trier of fact. (Rupf v. Yan (2000)
85 Cal.App.4th 411, 429-430, fn. 5.) Credibility is an issue for the trier of fact to resolve.
(Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622.) The
testimony of a single witness is sufficient to provide substantial evidence to support a
factual finding. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)
       Derek’s credibility was under attack because he reluctantly admitted that he had
entered into the SEA, and thereafter testified regarding the promissory note, payments on
the promissory note, and the pay off of the promissory note without a single reference to

                                              17
a document, canceled check, payment amounts, or dates of payments. The court
acknowledged this evidence was insufficient to establish he had paid off his obligation.
        But, in addition to Derek’s testimony, the deed in which Derek’s parents held title
to a 16.7026 percent interest in the Hermosa property was admitted into evidence.
Derek’s parents later deeded their interest back to Derek, and that deed also was admitted
into evidence. While there was conflicting evidence that holding title to the Hermosa
property was separate from the obligations under the SEA, the court was free to reject
that testimony and draw the reasonable inference that Derek’s parents’ decision to deed
their interest in the Hermosa property extinguished Derek’s obligation under the SEA.13
This inference is supported by substantial evidence.
     2. The Court Did Not Err in Interlineating Derek’s Election and Disclaimer
        Under the terms of the Second Amendment, the disclaimer Derek executed on
July 14, 2011 was not valid, as it was contrary to the settlor’s intent expressed therein.
(See Cook v. Cook, supra, 177 Cal.App.4th at p. 1441.) With Derek’s approval, the court
interlineated a portion of the disclaimer that excluded the net proceeds from the sale of
the Rental property. Derek’s brothers contend the court had no authority to excise the
offending portion of the disclaimer, and instead should have granted their petition. Given
the history of this dispute, such a ruling by the court would have been wholly
unproductive and a waste of scarce judicial resources since Derek agreed to the
interlineations. Indeed, Derek’s brothers do not argue that the interlineated version of
Derek’s disclaimer is invalid.
        Citing Citizens Business Bank v. Carrano (2010) 189 Cal.App.4th 1200, and
Estate of Canfield (1967) 256 Cal.App.2d 647, Derek’s brothers contend the court lacked

13
       Derek’s brothers challenge the court’s evidentiary rulings sustaining objections to
testimony regarding Scott’s and Garret’s SEAs. Upon our review of the record, the court
did not “refuse” to allow this testimony, but rather limited the scope of the testimony.
Scott’s SEA was admitted into evidence, and Scott was permitted to testify regarding his
SEA. Garret’s SEA was admitted into evidence, and he also testified regarding his SEA.
The court’s decision under Evidence Code section 352 to limit testimony on this issue
was not an abuse of discretion.

                                             18
authority to interlineate the disclaimer as the court in essence rewrote the terms of the
Trust. In Citizens Business Bank v. Carrano, the court stated it was not at liberty to
rewrite a trust instrument to attach restrictions to a term the settlors did not expressly
include, especially when the term was not ambiguous. (Citizens Business Bank v.
Carrano, supra, at pp. 1207-1208.) In Estate of Canfield, the court stated it was not
authorized to rewrite a will “under the guise of construing it to determine what the
testator might have intended if he had survived to a later date and had written it in the
light of subsequent developments.” 14 (Estate of Canfield, supra, at p. 654.) These cases
are inapposite. In this action, the court made no alterations to the Second Amendment,
and instead, by interlineating the objectionable terms in Derek’s disclaimer, turned an
invalid disclaimer into a valid one under the terms of the Second Amendment.
     3. The Court Erred in its Paramount Property Rent Allocation
        Derek executed a valid disclaimer on December 21, 2011. Until that date, Derek
had no right to all of the Paramount property rental income. Thus, the court erred in
awarding Derek Paramount property rental income from July 14, 2011 forward.




14
        Derek’s brothers also cite cases holding a court cannot rewrite instruments in the
context of a no-contest clause. These cases are not analogous as there is no contention
that the court’s interlineations of Derek’s election and disclaimer were contrary to the
terms in the Second Amendment.

                                              19
                                      DISPOSITION
       The June 29, 2011 order of the probate court granting the Petition is reversed only
insofar as the court erred in awarding prejudgment interest. In all other respects the order
is affirmed.
       The March 7, 2012 order of the probate court granting the Petition is reversed
insofar as the court awarded the Paramount property rental income to Derek Douglas for
the period from July 14, 2011 to December 21, 2011. In all other respects, the order is
affirmed.
       Each party to bear his own costs on appeal.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 ALDRICH, J.




We concur:




               KLEIN, P. J.




               KITCHING, J.

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