Gardenhire v. Superior Court

• Citation: 127 Cal.App.4th 882,26 Cal.Rptr.3d 143
• Decision Date: 22 March 2005
• Docket Number: No. H026601.,H026601.
• Court: California Court of Appeals
• Parties: Judith Lynn GARDENHIRE, Petitioner, v. SUPERIOR COURT of Santa Clara County, Respondent; Josephine A. Francesconi et al., Real Parties in Interest.

26 Cal.Rptr.3d 143

127 Cal.App.4th 882

Judith Lynn GARDENHIRE, Petitioner, v. SUPERIOR COURT of Santa Clara County, Respondent Josephine A. Francesconi et al., Real Parties in Interest.

No. H026601.

Court of Appeal, Sixth District.

March 22, 2005.

As Modified on Denial of Rehearing April 21, 2005.

Review Denied June 8, 2005.

Valensi, Rose & Magaram, Kenneth L. Heisz, Bruce D. Sires, Los Angeles, for Petitioner Judith Lynn Gardenhire etc.

Law Offices of Grace Kubota Yabarra, Grace Kubota Yabarra, Tone & Tone, Francine Tone, Truckee, for Real Party in Interest.

Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., Shari Leinwand, Julian W. Poon, Dominic Lanza, Los Angeles, Russell Roessler, San Jose, for Real Party in Interest St. Anne's Maternity Home.

RUSHING, P.J.

STATEMENT OF THE CASE

Petitioner Sister Judith Lynn Gardenhire, D.C., (hereafter Gardenhire) filed a petition for a writ of mandate directing the trial court to vacate its order denying her motion for summary judgment and to enter a new order granting the motion. We deny the petition.

Gardenhire filed her motion in a probate action to resolve competing claims by the beneficiaries of a living trust and the beneficiaries of a will to a parcel of real property. In 1989, Anne Pulizevich (Pulizevich) created the Anne Pulizevich Trust (Trust), naming herself as trustee and Ivka Barilovic (Barilovic) and Gardenhire as alternate trustees if Pulizevich became incapacitated or died. The Trust provided for Pulizevich to receive income during her lifetime. Upon her death, the Trust assets were to be distributed to O'Connor Hospital in trust for the benefit of Barilovic, Josephine Francesconi (Francesconi), and Mary Salles. Upon the death of each beneficiary, her interest would vest in O'Connor Hospital. Pulizevich executed a quitclaim deed, transferring a parcel of real property (the Property) into the Trust. Pulizevich also executed a pour-over will, in which she left her estate to the Trust and nominated Gardenhire and Barilovic as co-executors.

In January 2002, Pulizevich executed a will, in which she expressly revoked all prior wills. Although she did not mention the Trust, Pulizevich stated that it was her intent "to dispose of all real and personal property which I have the right to dispose of by Will ...." In particular, Pulizevich left her personal property to Francesconi. Pulizevich put the residue of her estate into a testamentary trust for the benefit of Francesconi and Barilovic. In connection with that trust, Pulizevich expressly provided, among other things, that Barilovic could live in an apartment on the Property as long as she wished. Pulizevich named Francesconi and the president of St. Anne's Maternity Home (St. Anne's) as trustees. Pulizevich also provided that upon the deaths of Francesconi and Barilovic, the principal and interest of the testamentary trust estate would vest in St. Anne's.

On April 23, 2002, Pulizevich died. Thereafter, Francesconi filed a petition seeking a determination that Pulizevich had revoked the Trust by will before she died and regained ownership of the Property as an individual. Francesconi also sought an order transferring legal title to the Property from the Trust to the Pulizevich estate. (See Prob.Code, § 850.)¹ Gardenhire, as trustee of the Trust, opposed the petition and later filed a motion for summary judgment, seeking a determination that Pulizevich could not have revoked the Trust by will. The trial court denied summary judgment, and Gardenhire now seeks a writ of mandate to reverse that ruling.

BACKGROUND

Gardenhire's motion for summary judgment raised two issues. The first involved the meaning of article I, section 1.02 of the Trust, which provides, in relevant part, "While living, the Trustor may at any time and from time to time by written notice signed by the Trustor and delivered to the Trustee: [¶] A. Revoke or change the interest in any trust created or to be created pursuant to this Declaration of any beneficiary named in this Declaration or in any amendment to this Declaration. [¶] B. Amend any provision of this Declaration or any amendment to this Declaration to such extent as may be acceptable to the Trustee. [¶] C. Revoke in whole or in part any trust or trusts created by or to be created pursuant to this Declaration. [¶] D. Withdraw all or any part of the Trust Estate."² The question raised by summary judgment was whether this provision authorizes revocation by will.

The second issue involved the meaning of section 15401, subdivision (a), which provides, "(a) A trust that is revocable by the settlor may be revoked in whole or in part by any of the following methods: [¶] (1) By compliance with any method of revocation provided in the trust instrument. [¶] (2) By a writing (other than a will) signed by the settlor and delivered to the trustee during the lifetime of the settlor. If the trust instrument explicitly makes the method of revocation provided in the trust instrument the exclusive method of revocation, the trust may not be revoked pursuant to this paragraph."³ The question raised by the summary judgment motion was whether the statute requires that the power to revoke by will be specifically and expressly stated in a trust.

In ruling on the motion, the trial court noted that the Trust expressly permitted revocation during the trustor's lifetime "by written notice" signed by the trustor and delivered to the trustee. Finding no evidence that Pulizevich intended to limit the scope of the term "written notice" and giving that term its ordinary meaning, the court found it to be "all-inclusive in terms of allowing any type of writing to constitute notice of revocation or amendment," including a will. (Italics added.) The court further concluded that under section 15401, the power to revoke by will need not be specifically and expressly set forth in a trust.

In her petition for a writ of mandate, Gardenhire reiterates the claims she made in her summary judgment motion and contends that both of the court's rulings were incorrect.⁴

THE TRUST PERMITTED REVOCATION BY WILL

"In construing trust instruments, as in the construction and interpretation of all documents, the duty of the court is to first ascertain and then, if possible, give effect to the intent of the maker." (Estate of Gump (1940) 16 Cal.2d 535, 548, 107 P.2d 17; see Ephraim v. Metropolitan Trust Co. of Cal. (1946) 28 Cal.2d 824, 834, 172 P.2d 501 ["the primary rule in construction of trusts is that the court must, if possible, ascertain and effectuate the intention of the trustor or settler"]; Crook v. Contreras (2002) 95 Cal.App.4th 1194, 1205, 116 Cal.Rptr.2d 319 [same].) "The interpretation of a written instrument, even though it involves what might properly be called questions of fact [citation], is essentially a judicial function to be exercised according to the generally accepted canons of interpretation so that the purposes of the instrument may be given effect. [Citations.] Extrinsic evidence is admissible to interpret the instrument, but not to give it a meaning to which it is not reasonably susceptible [citations], and it is the instrument itself that must be given effect. [Citations.] It is therefore solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence .... An appellate court is not bound by a construction of the contract based solely upon the terms of the written instrument without the aid of evidence [citations], where there is no conflict in the evidence [citations], or a determination has been made upon incompetent evidence [citation]. [Citations.]" (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866, 44 Cal.Rptr. 767, 402 P.2d 839.)

We agree with the trial court that because Pulizevich did not limit or qualify the term "written notice," she authorized revocation via any writing that unambiguously manifested her intent to revoke, including a will. We find significant support for such broad latitude in the fact that she named herself the trustee. The trust allowed Pulizevich to revoke simply by giving herself written notice of her intent to do so. Since she could not be mistaken about her own intent no matter how she chose to manifest it in writing, the broad, unqualified language of the trust reasonably implies that she did not intend to restrict the form of written notice or the nature of the documents used to provide it. Rather, any writing that unambiguously manifested her intent would do.

Relying primarily on Rosenauer v. Title Insurance Trust Co. (1973) 30 Cal.App.3d 300, 106 Cal.Rptr. 321 (Rosenauer) and Estate of Lindstrom (1987) 191 Cal.App.3d 375, 236 Cal.Rptr. 376 (Lindstrom), Gardenhire argues that as a matter of law, Pulizevichs 2002 will could not constitute written notice sufficient to revoke the Trust.

In Rosenauer, supra, 30 Cal.App.3d 300, 106 Cal.Rptr. 321, the trust provided that "`during her lifetime,'" the trustor could revoke it by "`an instrument in writing executed by the Trustor and delivered to the Trustee.'" (Id. at p. 301, 106 Cal.Rptr. 321, italics added.) The trustee was a third party. The trustor died, and in her will she expressly revoked the trust. (Id. at p. 302, 106 Cal.Rptr. 321.) However, neither the will nor any other form of written revocation was delivered to the trustee during the trustor's lifetime. (Ibid.) At that time, former Civil Code section 2280, the predecessor to section 15401, provided, "Unless expressly made irrevocable by the instrument creating the trust, every voluntary trust shall be revocable by the trustor by writing filed with the trustee...." (See stats.1986, ch. 820, 7 [repealing former Civ.Code 2280].) The executor of the will noted that although the trust required delivery during the trustor's lifetime, the statute did not. Nor did the statute exclude revocation by will. The executor argued that the statute controlled, and therefore, the...