Breslin v. Breslin

• Court: California Court of Appeals
• Writing for the Court: GILBERT, P. J.
• Citation: Breslin v. Breslin, 62 Cal.App.5th 801, 276 Cal.Rptr.3d 913 (Cal. App. 2021)
• Decision Date: 05 April 2021
• Docket Number: 2d Civ. No. B301382
• Parties: David BRESLIN, as Trustee, etc., Plaintiff and Respondent, v. Paul G. BRESLIN et al., Defendants and Respondents; Pacific Legal Foundation et al., Defendants and Appellants.

62 Cal.App.5th 801

276 Cal.Rptr.3d 913

David BRESLIN, as Trustee, etc., Plaintiff and Respondent,

v.Paul G. BRESLIN et al., Defendants and Respondents;

Pacific Legal Foundation et al., Defendants and Appellants.

2d Civ. No. B301382

Court of Appeal, Second District, Division 6, California.

Filed April 5, 2021

Ferguson Case Orr Paterson, Joshua S. Hopstone and David B. Shea, Ventura, for Defendants and Appellants Pacific Legal Foundation, Judicial Watch, Save the Redwoods League, Concerned Women of America, Catholics United for Life, Catholic League, Sacred Heart Auto League, National Prolife Action Center, doing business as Liberty Counsel, and Orbis International.

Staker Law Tax and Estate Planning Law Corporation, Kevin G. Staker, Camarillo, and Brandon P. Johnson for Plaintiff and Respondent David Breslin, Trustee.

Jones, Lester, Schuck, Becker & Dehesa, Mark A. Lester, Oxnard, Katherine H. Becker and Eric A. Hirschberg, for Defendants and Respondents Paul G. Breslin and Kathleen Breslin LaForgia.

GILBERT, P. J.

The legal historian Frederic William Maitland is reputed to have said, "The law is a seamless web." He didn't.¹

The phrase, however, applicable to the law in general, is particularly apt here. This case began and ended in probate court. But the law concerning mediation also applies. The proceeding here is made from the seamless fabric of probate and mediation law.

The trustee of a decedent's trust petitioned the probate court to determine the trust beneficiaries. The potential trust beneficiaries received notice of the petition. The probate court ordered the matter to mediation. The same potential beneficiaries received notice of the mediation, but some did not participate. The participating parties reached a settlement that excluded the nonparticipating parties as beneficiaries. The probate court approved the settlement. The nonparticipating parties Pacific Legal Foundation et al.² (collectively "the Pacific parties") appeal. We affirm. A party receiving notice under the circumstances here, who fails to participate in court-ordered mediation, is bound by the result.

FACTS

Don Kirchner died in 2018 leaving an estate valued at between $3 and $4 million. Kirchner had no surviving wife or children, but he was survived nieces and nephews.

Kirchner's estate was held in a living trust dated July 27, 2017.³ The trust was amended and restated on November 1, 2017 (restated trust). David Breslin (Breslin) was named the successor trustee in the restated trust.

Breslin found the restated trust, but initially could not find the original trust. The restated trust makes three $10,000 specific gifts and directs that the remainder be distributed to the persons and charitable organizations listed on exhibit A in the percentages set forth.

The restated trust did not have an exhibit A attached to it, and no such exhibit A has ever been found. But in a pocket of the estate planning binder containing the restated trust, Breslin found a document titled "Estates Charities (6/30/2017)." The document listed 24 charities with handwritten notations that appear to be percentages.

Breslin filed a petition in the probate court to confirm him as successor trustee and to determine the beneficiaries of the trust in the absence of an attached exhibit A. Breslin served each of the listed charities, including the Pacific parties. Only three of the listed charities filed formal responses. The Pacific parties did not.

The probate court confirmed Breslin as successor trustee and ordered mediation among interested parties, including Kirchner's intestate heirs and the listed charities. The mediator's fees were to be paid from the trust. One of the listed charities, the Thomas More Law Center (TMLC), sent notices of the mediation to all the interested parties, including the Pacific parties. Approximately four notices of continuances were sent to all the parties, including the Pacific parties, before the mediation took place.

The mediation notice included the following:

"Mediation may result in a settlement of the matter that is the subject of the above-referenced cases and of any and all interested persons’ and parties’ interests therein. Settlement of the matter may result in an agreement for the distribution of assets of the above-referenced Trust and of the estate of Don F. Kirchner, Deceased, however those assets may be held. Settlement of the matter may also result in an award of attorneys’ fees to one or more parties under Smith v. Szeyller (2019) 31 Cal.App.5th 450, 242 Cal.Rptr.3d 585. Interested persons or parties who do not have counsel may attend the mediation and participate.

"Non-participating persons or parties who receive notice of the date, time and place of the mediation may be bound by the terms of any agreement reached at mediation without further action by the Court or further hearing. Smith v. Szeyller (2019) 31 Cal.App.5th 450, 242 Cal.Rptr.3d 585. Rights of trust beneficiaries or prospective beneficiaries may be lost by the failure to participate in mediation.

"All represented parties (or his, her or their counsel) and all unrepresented parties that intend to participate in the mediation are requested to advise the undersigned of his, her or their intention to be present and participate by making contact via either email ... or U.S. Mail. Notice to participate in mediation will not be accepted via telephone."

Only five of the listed charities appeared at the mediation, including TMLC. The intestate heirs also appeared. The Pacific parties did not appear. The appearing parties reached a settlement. The settlement agreement awarded specific amounts to various parties, including the appearing charities, and attorney fees with the residue to the intestate heirs. The agreement did not include the Pacific parties.

TMLC filed a petition to approve the settlement. When the Pacific parties received notice of this petition, they filed objections.

Prior to the hearing on the petition, Breslin filed a supplemental declaration stating that he found the original trust document. The restated trust had no exhibit A attached, but he found attached to the original trust an exhibit A listing the same charities as were found on the document in the binder with the restated trust.

The probate court granted Breslin's petition to approve the settlement. The court denied the Pacific parties’ objections on the grounds that they did not file a response to Breslin's petition to determine the beneficiaries and did not appear at the mediation.

The Pacific parties appeal.

DISCUSSION

IStandard of Review

The Pacific parties contend that because the issues here do not involve findings of fact, the standard of review is de novo. The standard of review for the probate court's approval of a settlement is abuse of discretion. ( Estate of Green (1956) 145 Cal.App.2d 25, 28, 301 P.2d 889.) The dispute is academic, however. The result is the same under either standard.

IIForfeiture of Rights

The probate court has the power to order the parties into mediation. (See Prob. Code,⁴ § 17206 ["The court in its discretion may make any orders and take any other action necessary or proper to dispose of the matters presented by the petition"].) The court did so here. The Pacific parties received notice of the mediation, but chose not to participate.

In Smith v. Szeyller , supra , 31 Cal.App.5th 450, 458, 242 Cal.Rptr.3d 585, we held that a party who chooses not to participate in the trial of a probate matter cannot thereafter complain about a settlement reached by the participating parties. The Pacific parties point out that there was no trial here. True, but the mediation ordered by the probate court, like the trial in Smith , was an essential part of the probate proceedings. The Pacific parties may not ignore the probate court's order to participate in the proceedings and then challenge the result. The probate court's mediation order would be useless if a party could skip mediation and challenge the resulting settlement agreement.

The Pacific parties complain they were denied an evidentiary hearing. But the probate court has the power to establish the procedure. ( § 17206.) It made participation in mediation a prerequisite to an evidentiary hearing. By failing to participate in the mediation, the Pacific parties waived their right to an evidentiary hearing. It follows that the Pacific parties were not entitled to a determination of factual issues, such as Kirchner's intent, and cannot raise such issues for the first time on appeal. ( Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 865, fn. 4, 50 Cal.Rptr.2d 242, 911 P.2d 429 [court will not address issues raised for the first time on appeal].)

Estate of Bennett (2008) 163 Cal.App.4th 1303, 1310, 78 Cal.Rptr.3d 435, is of no help to the Pacific parties. There the Court of Appeal held that estate beneficiaries who petitioned to set aside a settlement agreement were entitled to an evidentiary hearing. But Bennett did not involve a party's failure to respond to a mediation order.

The Pacific parties argue the only way they can forfeit their interest is by filing a written disclaimer. They rely on section 275. That section provides, "A beneficiary may disclaim any interest, in whole or in part, by filing a disclaimer as provided in this part." ( Ibid. ) The disclaimer must be in writing signed by the disclaimant. ( § 278.) We agree the Pacific parties did not disclaim their interest. Instead, they forfeited their interest when they failed to participate in mediation as ordered by the court.

Had the Pacific parties appeared at the initial probate hearing, for which they received notice, they would have had the opportunity to object to mediation. Instead, they waited until after the mediation, for which they also received notice, in addition to notices of continuances, to finally object to the result. The dissent expresses concern for the due process rights of parties who ignored these multiple notices, and apparently no concern for the...