Bakkers v. Bakkers
| Docket Number | G061021 |
| Decision Date | 30 May 2023 |
| Parties | MICHAEL BAKKERS, as Trustee, etc., Plaintiff and Appellant, v. GABY J.P. BAKKERS et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No 30-2017-00902317, Edward W. Hall, Temporary Judge.
Bradley R. Kirk &Associates and Bradley R. Kirk for Plaintiff and Appellant.
Law Offices of John A. Belcher and John A. Belcher for Defendants and Respondents.
Michael Bakkers challenges the probate court's order removing him as trustee of his parents' family trust, contending the order is both procedurally improper and factually unsupported. Finding no reversible error, we affirm.
Paul and Joan Bakkers created a living trust and, in a 2013 amendment, named four of their children, including Michael and Gaby Bakkers, as beneficiaries, and named Michael as successor trustee.[1] The parents subsequently purchased a house (the Whitman property) previously owned by their son Andrew Bakkers, with Michael serving as the realtor. Because the property was in foreclosure and could not be purchased by Andrew's relatives, Michael's girlfriend, Linh Nguyen, purchased it using funds from Joan. Nguyen signed a promissory note for $375,000 to be secured by a deed of trust against the property and then transferred it to Joan. The parents later successfully sued to cancel the deed of trust.
In 2014, the parents executed another amendment to the trust naming Gaby as trustee. After Joan passed away and Paul became incapacitated, Michael and other siblings challenged the 2014 amendment in the probate court and asked the court to remove Gaby as trustee, order her to prepare an accounting of the trust during her time as trustee, and appoint Michael as trustee. The court ultimately ruled that the amendment was invalid, resulting in Gaby's removal as trustee. By this time, Paul had also passed away, and thus Michael became the trustee, and title to the Whitman property passed over to the trust. The court ordered Gaby to file an accounting for the period in which she served as trustee, as Michael and the other challengers had requested. Gaby complied, and Michael objected to her accounting, leading to a trial.
In November 2021, shortly before the accounting trial, Gaby filed an ex parte application to remove Michael as trustee, advising that the hearing would be held on November 16, at the same time a hearing in the accounting trial was to take place.[2] She complained Michael had sold the Whitman property at a price below market value, without court approval, without accounting to the other beneficiaries, and without paying creditors with recorded liens. In an attached declaration, Gaby alleged Michael had sold the Whitman property to a group that included his girlfriend and suggested this constituted "self dealing." She included a grant deed reflecting the transfer of the property to three individuals, including "Hong Linh Nguyen," and stated that "'Linh Nguyen'" was Michael's girlfriend, whom her parents had sued to invalidate the fraudulent deed of trust against the Whitman property. Gaby served the application on Michael, but her proof of service did not expressly indicate he was being served "as trustee." Michael filed no opposition to the ex parte application.
On November 16, Michael appeared in propria persona for the accounting hearing, planning to present his arguments in opposition to Gaby's ex parte application that same day. At the accounting hearing, Michael testified he had sold the Whitman property to cover trust expenses. He did not address Gaby's claim that he had transferred the property to his girlfriend. The probate court later granted Gaby's application, without holding a separate hearing, noting Michael had filed no opposition and had admitted to selling the property. The court suspended Michael and deferred his removal pending the parties' proposals for a successor trustee at the next hearing.
The evening before the next hearing, Michael, now represented by counsel, filed a "supplemental trial brief" regarding his "suspension/removal of trustee," along with a declaration, requesting reconsideration of the probate court's prior ruling. He asserted, inter alia, that contrary to Gaby's claims, he had sold the Whitman property for the benefit of the trust, for a good price, on the open market. Again, he did not address Gaby's claim that he had sold the property to his girlfriend. The court denied Michael's request and appointed an independent trustee. Michael timely appealed.
Michael challenges the probate court's order removing him as trustee, claiming it was both procedurally improper and factually unsupported. As explained below, we find no reversible error.
First in his opening brief, Michael asserts, without any legal analysis or citation to authority, that the court lacked jurisdiction to remove him because there was no petition pending against him as trustee and because Gaby's application to remove him was served on him as an individual, rather than "as Trustee."[3] Similarly, Michael asserts, without analysis or citation to authority, that the court violated his due process rights because he had no opportunity to conduct discovery or question witnesses.[4] These conclusory assertions are insufficient to establish error in the court's ruling. On appeal, a trial court's judgment is presumed to be correct, and the appellant bears the burden to affirmatively establish error. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2022) ¶8:17.1, p. 8-6.) By failing to develop his arguments and support them with authority in his opening brief, Michael has forfeited his contentions.[5] (Limon v. Circle K Stores Inc. (2022) 84 Cal.App.5th 671, 687 [].)
We observe that Michael's contentions do not concern the probate court's subject matter jurisdiction, which cannot be forfeited. (See Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 339 [].) The probate court's jurisdiction encompasses "the internal affairs of trusts" and "[o]ther actions and proceedings involving trustees ...." (Prob. Code, § 17000, subds. (a) &(b)(3).) Instead, his contentions suggest the court acted in excess of its jurisdiction, and they are thus subject to forfeiture. (See Schwartz, supra, 164 Cal.App.4th at pp. 426, 430 [].)
The probate court has general power and duty to supervise the administration of trusts and to respond to perceived breaches of trust (Blech v. Blech (2019) 38 Cal.App.5th 941, 955; Schwartz, supra, 164 Cal.App.4th at p. 427), including the express power to remove a trustee on its own motion (Prob. Code, § 15642; Schwartz, at p. 427). While Michael belatedly asserts in his reply brief that he never submitted to the court's jurisdiction as trustee, it is undisputed he had initiated the proceedings and filed a petition that sought to remove Gaby, order an accounting, and appoint him as trustee. (Cf. Schwartz, at p. 428 [].) It is similarly undisputed Michael appeared before the court at the same time for which a hearing on Gaby's ex parte application had been scheduled, with the intent to argue in opposition to the application. Under these circumstances, Michael cannot establish that the court was without power to act.
Second, as to the factual basis for the probate court's ruling, Michael argues, inter alia, that he did nothing to justify his removal as trustee, that he merely sold the Whitman property for the benefit of the trust, and that the sale did not require court approval. Nowhere in his opening brief does Michael address the evidence before the court-and one of the grounds Gaby asserted for his removal-that he had sold the Whitman property to his girlfriend, who had previously served as a straw person in the purchase of the same property. Michael's failure to address this evidence in his opening brief forfeits his argument.[6] (See Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218 [].)
In his reply brief, Michael argues for the first time that, despite partial similarities in their names, the buyer Gaby pointed to was not his girlfriend. Although he concedes that "the primary reason the Court suspended/removed Michael was due to the . . . belief that Michael had improperly sold the Whitman Property to his girlfriend," he offers no explanation why he could not have addressed the "primary reason" for the ruling he seeks to challenge in his opening brief. Because he failed to address the issue in his opening brief, we do not consider his late contention.[7] (Provost v. Regents of University of California (2011) 201...
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