Filed 11/21/14 Spicer v. Steward CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



MILBRY ATISHA CLEYO SPICER,
as Co-Trustee, etc. et al.,
                                                                         E057114
         Petitioners and Respondents,
v.                                                                       (Super.Ct.No. VPRVS003101)

RANDOLPH W. STEWARD,                                                     OPINION

         Objector and Appellant.



         APPEAL from the Superior Court of San Bernardino County. J. Michael Welch,

Judge. Affirmed.

         Randolph W. Steward, in pro. per., for Objector and Appellant.

         No appearance for Petitioners and Respondents.

         This is a probate action regarding the Milbry Cleyo Spicer Living Trust (the

Trust). Appellant Randolph W. Steward, who represents himself in pro. per. in this

appeal, is one of the beneficiaries of the Trust. He challenges an order of the probate

court entitled “Order After Trial Re: Co-Trustee[s’] Third Account and Report; and

Petitioner Randolph W. Steward’s Petition For Orders” (Order). In his briefing,
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Mr. Steward has not asserted any claim of error with respect to the referenced petition for

orders, which the probate court dismissed for failure to prosecute. He has not raised any

meritorious arguments with respect to the remainder of the Order, which among other

things approves the Third Report of Co-Trustees, Petition for Attorney’s Fees and

Compensation to Co-Trustees (Third Accounting). Mr. Steward in substance raises only

a single contention, although it is stated several different ways: he believes that the two

respondent successor cotrustees of the Trust lacked the authority to act on behalf of the

Trust, including to file the Third Accounting, because a third successor cotrustee has

resigned and not been replaced.1 We disagree with Mr. Steward, and affirm.

                   I. FACTS AND PROCEDURAL BACKGROUND

       On June 27, 2004, Milbry Cleyo Spicer established the Trust in her name,

designating herself as both grantor and trustee. Three individuals were named to serve

successor cotrustees of the Trust in the event of her death or incapacity: Charles King,

Milbry Atisha Cleyo Spicer, and Rebecca Annette Scott, also known as Rebecca Steward.

Milbry Cleyo Spicer died on December 17, 2004, and the three named successor

cotrustees assumed their roles on behalf of the Trust.

       In June 2006, and again in March 2007, Mr. King and Ms. Spicer petitioned the

probate court to remove Ms. Steward as successor cotrustee, on a variety of grounds. On

January 30, 2009—following a series of continuations and a January 2009 stipulation of

the parties to hold the matter of Ms. Steward’s removal in abeyance—Ms. Steward

       1 This is a line of argument Mr. Steward has also raised in a related civil appeal
(King v. Steward, Nos. E052121, E055805).

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resigned as successor cotrustee, pursuant to a settlement agreement between the parties in

the related civil action. (See fn. 1, ante.) Nobody was appointed to serve as a third

successor cotrustee of the Trust in place of Ms. Steward.

       Mr. King and Ms. Spicer, in their capacity as the remaining successor cotrustees of

the Trust, filed the Third Accounting on July 14, 2010. Mr. Steward—who was then

represented by counsel—filed objections on September 28, 2010, and the cotrustees

responded. In March 2011, Mr. Steward filed a petition for orders.2 After a series of

continuances, the Third Accounting and Mr. Steward’s objections thereto, as well as

Mr. Steward’s petition for orders, were set for hearing on May 1, 2012. The Third

Accounting was heard first, with Mr. Steward (now representing himself) examining two

witnesses—Mr. King and Ms. Spicer—while Mr. King and Ms. Spicer submitted on their

papers. The hearing was continued on May 2, 2012, to hear any remaining evidence or

argument Mr. Steward might wish to present with respect to the Third Accounting, and to

hear his petition for orders. But Mr. Steward failed to appear for the second day of the

hearing, calling in to the court clerk to claim a family emergency. The court found the

purported family emergency to be a pretextual attempt to avoid having the matter

proceed, Mr. Steward’s request for a continuance having been denied the day before.

The court deemed the matter of the Third Accounting submitted, based on the evidence

and argument presented to that point, including the parties’ verified papers, and granted

       2 Mr. Steward’s petition for orders does not appear in appellant’s appendix, or
anywhere else in our record. Nevertheless, we glean from the reporter’s transcript that it
apparently addressed at least some of the same issues as he raised in his objections to the
Third Accounting.

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the cotrustees’ oral motion to dismiss Mr. Steward’s petition for orders for failure to

prosecute.3

       The court’s Order, ruling on the Third Accounting and Mr. Steward’s petition for

orders, was filed June 20, 2012.

                                     II. DISCUSSION

       Mr. Steward purports to raise three issues on appeal: (1) whether the trial court

erred in its interpretation of the Trust’s provisions regarding appointment of a successor

cotrustee; (2) whether the two remaining successor cotrustees acted in excess of their

powers because they acted without the vote of a third successor cotrustee; and

(3) whether the cotrustees “lack standing” to file the Third Accounting. Each of these

purported issues, however, is a different facet of the same basic point, namely,

Mr. Steward’s contention that the Trust requires the unanimous vote of three successor

cotrustees for any action, and following the resignation of one successor cotrustee, the

remaining two are not empowered to take any action on behalf of the Trust, unless and

until a new successor cotrustee is appointed. We disagree with Mr. Steward’s

interpretation.

       “We exercise our independent judgment in construing the terms of the Trust.

[Citation.] Our primary duty in construing the Trust is to give effect to [the trustor’s]

intent. We do this by looking at the language used, interpreting words in their ordinary



       3 The court noted that Mr. Steward had already examined the only two witnesses
he had indicated an intention of calling to testify.

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and grammatical sense, unless a different interpretation can be clearly ascertained.

[Citation.]” (Huscher v. Wells Fargo Bank (2004) 121 Cal.App.4th 956, 972 (Huscher).)

       The Trust designates “Milbry Cleyo Spicer” as both the grantor and the trustee.

“Charles King, Milbry Atisha Cleyo Spicer . . . and Rebecca Annette Scott [also known

as Rebecca Steward]” are designated to serve as “successor Co-Trustees” in the event of

the death or incapacity of the trustee. As noted, these three individuals became successor

cotrustees on December 17, 2004, when Milbry Cleyo Spicer died.

       “Unless otherwise provided in the trust instrument, a power vested in two or more

trustees may only be exercised by their unanimous action.” (Prob. Code, § 15620.) The

Trust does not provide otherwise, so this unanimity requirement generally applies to the

powers of the Trust’s successor cotrustees.

       Nevertheless, neither any provision of the Trust, nor Probate Code section 15620,

requires that once three successor cotrustees assume their duties, three votes are forever

more required for any action on behalf of the Trust, as Mr. Steward would have it. After

the resignation of Ms. Steward as a successor cotrustee, there remained two successor

cotrustees of the Trust. Under the ordinary meaning of the words of the Trust and the

Probate Code, actions taken with the agreement of those two remaining successor

cotrustees constitutes “unanimous action.”

       Mr. Steward makes much of language from a subsection of the Trust instrument

entitled “Adult Beneficiary Rights.” This section provides that, if a successor cotrustee

fails or ceases to serve as trustee, the adult beneficiaries of the Trust may, by “majority

action in writing,” appoint a successor cotrustee. It further provides that if “agreement of

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a majority of the beneficiaries cannot be obtained within sixty (60) days, a successor

Trustee shall be appointed by the court having general jurisdiction of the Trust.”

Mr. Steward reads the word “shall” to mean that a replacement successor cotrustee must

be appointed by the court (or by majority action of the adult beneficiaries, during the 60-

day window), prior to any further action being taken on behalf of the Trust by the

remaining successor cotrustees.

       In our view, Mr. Steward places far more weight on the word “shall” than it can

bear. In context, the provision apparently means that if a “court having general

jurisdiction of the Trust” is requested to appoint a replacement successor cotrustee, it

shall do so.4 In other words, the “Adult Beneficiary Rights” section of the Trust

instrument provides that, after the 60-day period when the adult beneficiaries may, by

majority action, appoint a replacement successor cotrustee, the appointment power

devolves to the courts. There is no reason to conclude from this succession procedure

that the remaining cotrustees lack power to act on behalf of the Trust, unless and until a

new successor cotrustee is appointed.

       Moreover, it is implausible that Mr. Steward’s interpretation is consistent with the

intent of the trustor. (See Huscher, supra, 121 Cal.App.4th at p. 972.) If the remaining

two successor cotrustees were disabled from taking any action on behalf of the Trust,

unless and until a new third successor cotrustee was appointed, there would necessarily


       4  Although Mr. Steward is one of the adult beneficiaries of the Trust, nothing in
our record suggests he has ever petitioned the court to appoint a new successor cotrustee
in place of Ms. Steward.

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be an interregnum when nobody had authority to take action to protect Trust assets. This

period could last for several months, while a majority of the adult beneficiaries tried to

come to an agreement on a successor cotrustee, or even years, until the matter was

decided by the courts. Because there is no explicit language in the Trust instrument

compelling such a result, we decline to adopt an interpretation so unlikely to be

consistent with the intent of the trustor.

       In short, Mr. Steward’s various arguments based on the purported lack of authority

of the two remaining cotrustees of the Trust to act are without merit. In this appeal, he

raises no other arguments.

                                        III. DISPOSITION

       The order appealed from is affirmed. The parties shall each bear their own costs

on appeal.5

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                HOLLENHORST
                                                                         Acting P. J.
We concur:

       RICHLI
                                   J.

       CODRINGTON
                                   J.



       5  Although respondents have prevailed on the merits in this appeal, they did so
despite failing to file a respondents’ brief. We decline, therefore, to award them costs.
(California Rules of Court, rule 8.278(a)(5).)

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