Greaney v. Simon-Jenson
| Decision Date | 15 September 2021 |
| Docket Number | B306300 |
| Court | California Court of Appeals Court of Appeals |
| Parties | WILLIAM E. GREANEY, as Cotrustee, etc., et al., Plaintiffs and Respondents, v. PAMELA SIMON-JENSON et al., Defendants and Appellants BRADFORD A. BERENSON et al., Defendants and Respondents. |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 19STPB07871, Paul T. Suzuki, Judge.
Greenberg Glusker Fields Claman & Machtinger, Benazeer Roshan and Jillian A. Berk for Defendant and Appellant Eric R. Simon.
Snyder & Hancock, and Scott Hancock for Defendant and Appellant Pamela Simon-Jensen.
Kilpatrick Townsend & Stockton, Adam P. Wiley and Adam H Charnes for Defendants and Respondents Bradford A. Berenson, Randall Berenson, and Matthew Berenson.
No appearance for Plaintiffs and Respondents.
This appeal concerns a dispute between the children and stepchildren of Donald Simon (Donald), [1] the son of industrialist and philanthropist Norton Simon. Donald died in 2019, leaving a trust estate valued in excess of $50 million. Following his death, the trustees of Donald's trust filed a petition for construction of the trust, seeking the court's determination whether Donald's stepchildren were entitled to distributions of $500, 000 from the trust corpus. The probate court found that the trust unambiguously provided for such distributions, “with the result that each of [Donald's stepchildren] is now entitled to receive $500, 000 in cash.”
Two of Donald's three children appealed, contending that under the plain language of Donald's trust, his stepchildren are not entitled to distributions because their mother, Donald's second wife, is still living. Donald's stepchildren disagree, urging that the trust plainly provides for distributions to them following Donald's death, regardless of whether or not their mother is still alive.
We affirm. As we discuss, the probate court correctly found that the trust unambiguously provides for unconditional distributions of $500, 000 to each of Donald's three stepchildren following his death. The probate court therefore properly refused to consider extrinsic evidence and ordered immediate distributions of $500, 000 to Donald's stepchildren.
Donald's first wife was Linda Simon (Linda), with whom he had three children: appellant Eric Simon (Eric), appellant Pamela Simon-Jenson (Pamela), and Douglas Simon.[2] After Linda's death in 1977, Donald married Judy Colton Simon (Judy), who had three sons from a prior marriage: respondents Bradford Allan Berenson, Matthew David Berenson, and Randall Howard Berenson. The Berenson children were 8, 10, and 13 years old when their mother married Donald.
Donald died on March 4, 2019. He was survived by Judy, his three children, and the three Berenson children.
In 1991, Donald created the Donald E. Simon Trust, which he amended several times. The operative trust instruments are the Fifth Amendment to and Complete Restatement of the Trust Agreement of the Donald E. Simon Trust, executed on September 20, 2007 (trust agreement), and the first, second, and third amendments thereto, executed May 16, 2011, June 7, 2011, and August 1, 2013.[3] We describe the key provisions of the trust agreement below.
Distributions to Judy and to Donald's children:With the exception of additional separate distributions discussed below, the trust agreement provides for the distribution of Donald's estate to Judy and to Donald's children if Donald predeceases Judy, or to Donald's children alone if Judy predeceases him. It states as follows:
-If Donald predeceases Judy, Judy will receive Donald's personal effects (excluding works of fine art with a value exceeding $25, 000), plus property and/or cash with a combined value not to exceed $10, 500, 000. Thereafter, the trustees will divide the balance of the trust estate into two equal parts, referred to as the “Residuary Trusts” and “Judy's Trust.” The Residuary Trusts will be divided into three equal shares and then distributed outright to Donald's children. The income generated by Judy's Trust, plus up to one percent of the trust principal, will be distributed to or for the benefit of Judy during her lifetime; upon Judy's death, the balance of the principal of Judy's Trust will be distributed to Donald's children in equal shares.
-If Judy predeceases Donald, his personal effects, as well as the entire residue of Donald's estate, will be distributed to his three children in approximately equal shares. If any of Donald's children are not living at the time of his death, their shares will be distributed to their issue.
Additional specific distributions:In addition to distributions to Judy and to Donald's children, the trust agreement provides for specific distributions to three groups of beneficiaries: up to $1, 000, 000 to each of Judy's children, or to their issue (¶ 3.2.1.6); $25, 000 to Paul and Ah San Chan (¶ 3.2.1.7); and $250, 000 to the American Jewish Committee (¶ 3.2.1.8).[4] The paragraphs providing for distributions to Judy's children are discussed in greater detail below.
Shortly before Donald's death, Eric told the trustees that he believed Judy's children were not entitled to distributions under the trust agreement if, as appeared likely, Donald were to predecease Judy.
On August 20, 2019, the trustees filed a petition for construction of the trust agreement, specifically seeking “a determination from the Court regarding the correct construction of” paragraph 3.2.1.6(b). The trustees asserted that “at least one of the Simon children is asserting one position on the construction issue, ” and “the three Berenson children have retained counsel and intend to assert the opposite position on the construction issue.” The trustees did not “take a formal position in favor of either of the two sides, ” but requested that the court “construe the provisions in question and determine which of the two interpretations is correct.”
The Berensons filed a response and objection to the petition, asserting that by its plain language, paragraph 3.2.1.6(b) of the trust agreement entitled them to $500, 000 distributions upon Donald's death, regardless of whether Donald or Judy died first.[5] Eric and Pamela (sometimes referred to collectively as the Simons) disagreed, asserting that when read in context, paragraph 3.2.1.6(b) did not apply because Judy did not predecease Donald.
At a January 8, 2020 hearing, counsel for the Berensons suggested that before any discovery was taken, the court should decide whether the trust language was reasonably susceptible of both interpretations offered by the parties. Counsel said:
The court asked counsel whether the other parties joined in this proposal. The court said it was prepared to make a ruling on whether extrinsic evidence was admissible, but “I don't want to do that unless everybody agrees.” Alternatively, the court said, it could send the matter to mediation or set it for trial, “and then you could have an opportunity to brief whatever you need to do, [through] motions in limine, to... allow or not allow extrinsic evidence.”
After some further discussion, the court asked whether each party wished to stipulate that at the next hearing, “the court is going to be allowed to make a decision whether or not extrinsic evidence is permissible or not.” All counsel, including counsel for Eric and Pamela, so stipulated, and the court set a further hearing for February 11, 2020.
On January 22, 2020, Pamela and Eric submitted additional briefs, urging that the trust agreement unambiguously provided for distributions to the Berensons only if Judy predeceased Donald, but that if the court disagreed, it should give the parties the opportunity to introduce extrinsic evidence of Donald's intent.
At the February 11, 2020 hearing, the trial court found that the trust agreement unambiguously provided for $500, 000 gifts to the Berensons at the time of Donald's death, regardless of whether Judy or Donald died first. In its subsequent order, dated April 3, 2020, the court stated as follows: [¶]... Accordingly, the court ordered, paragraph 3.2.1.6(b) of the trust agreement “shall be construed to mean the gift of $500, 000 to each of the children of Judy Colton Simon following the death of Donald E. Simon is unconditional, with the result that each of the children of Judy Colton Simon is now entitled to receive $500, 000 in cash.”
Notice of entry of the court's order was served on April 14, 2020. The Simons timely appealed.
The sole question before us is...
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