Raymond Blech v. Richard Blech, Commercial Bank as Trustee, etc.

Arthur Blech died in 2011, leaving an estate worth in

excess of $65 million. At his death, his estate planning

documents included the Arthur Blech Living Trust, as amended,

and his will, which provided for the “pour over” of most of his

remaining assets into the Trust, to be administered as part of the

corpus of the Trust by a third party trustee. Arthur left most of

his estate in unequal shares to his four children, Raymond,

Richard, Robert and Jenifer.1 The current successor trustee is

respondent Comerica Bank.

1 For clarity, we refer to family members by their first

names; we mean no disrespect. We also note Robert spells his

surname “Bleck” and Jenifer is also known as Jenifer Rush and

as Linda Sue Grear.

2



The issues presented in this appeal relate to how to account

for the sale of the 3,050-acre Blech Ranch (the Ranch or the Blech

Ranch), located in San Luis Obispo County, California. When the

Trustee filed a petition for approval of its first accounting in

October 2014, Raymond objected to the allocation, principally on

the basis that all of the capital gains tax (income tax) on the sale

was allocated to his share. The probate court bifurcated that

issue from other objections to this petition and, after a hearing,

determined that allocation to be appropriate. Thereafter, with

the exceptions we consider on this appeal, the Blech Children

resolved their differences, entered into separate settlement

agreements with the Trustee and stipulated that the court could

enter an order approving the Trustee’s first accounting.

Raymond has filed four separate appeals from the probate

court’s rulings. In the unpublished portions of this opinion, we

resolve which of those appeals is viable and other procedural

issues; also confirming the award of attorney fees to three of the

Blech Children. In the published portion of this opinion we

determine that the gift of the Blech Ranch (and of its equivalent

in cash as of the date of its sale) was a funding mechanism for

Raymond’s 35% share of the remainder or residue of the estate

rather than an additional specific gift to him.

When we reference the children as a group, we use the

terms “Blech Children” or “the siblings.”

3



FACTUAL AND PROCEDURAL HISTORY2

Arthur executed the Arthur Blech Living Trust (the Trust)

in 2009, designating himself its initial trustee. At the same time,

he executed a will in which he made certain specific bequests,

and provided for the “pour over” of the balance of his estate into

the Trust. In 2010, he amended article 5.4 of the Trust, adjusting

the share for his son Robert to reflect a loan made to him. Arthur

died on January 13, 2011. Following the declination by the

2 During the pendency of this appeal, on March 2, 2018,

Raymond filed a request for judicial notice pursuant to Evidence

Code sections 452, 454 and 459, or in lieu thereof, a request that

we take additional evidence as permitted by Code of Civil

Procedure section 909, seeking to have this court take judicial

notice of the contents of the reporter’s transcript of proceedings in

the probate court which occurred on January 10, 2018, and of a

declaration of William Buckley, a senior vice president of the

Trustee. Respondents filed oppositions to these requests.

These requests are denied for the following reasons. In

reviewing the correctness of the probate court’s determination,

we consider only those matters that were part of the record at the

time an order or judgment was entered (with limited exceptions,

none of which is present). (Reserve Insurance Co. v. Pisciotta

(1982) 30 Cal.3d 800, 813; see also In re Zeth S. (2003) 31 Cal.4th

396, 407-410, 413 [it is generally inappropriate for an appellate

court to look to matters not before the trial court at the time it

made its rulings].) Nor has Raymond suggested there are

circumstances which qualify as “exceptional” to warrant taking

evidence pursuant to Code of Civil Procedure section 909. (Cf.

Reserve, at p. 813; In re Conservatorship of Hart (1991) 228

Cal.App.3d 1244, 1257.) Also, in its opposition, the Trustee

advised us that the Buckley declaration was rejected by the

probate court, an action which Raymond does not dispute. As

this declaration was never admitted by the trial court, it would

not qualify for judicial notice in any event.

4



originally named successor trustee to serve, first, Union Bank,

N.A., and then Comerica Bank (the Trustee), served as successor

trustee.

Article 5 of the Trust set out the terms of administration

and distribution of Arthur’s assets on his death, providing for:

distribution of his personal effects in article 5.2, and the making

of specific distributions of cash to Robert, Richard and Jenifer

and other named individuals, and of a gift of a specified parcel of

real property to Raymond, in article 5.3. Article 5.4 provided for

distribution of the remainder of the trust estate as follows:

25 percent to Robert, 15 percent to Jenifer, 25 percent to Richard,

and 35 percent to Raymond, provided that Raymond’s share

“shall include any interest that [Arthur] . . . owns in the ranch [in

San Luis Obispo County].”3 Article 5.5 provided for payment of

income and estate taxes as follows: “All estate taxes payable by

this Trust shall be paid by the beneficiaries listed in Paragraph

5.4 above in direct proportion to their respective percentage

shares. Income taxes payable by any subtrust shall be paid by

the beneficiary of such subtrust.” Article 5.7 provided that the

gifts made in article 5.4 would be distributed to the Blech

Children in fractional interests over a 10-year period.

In late 2013, Raymond negotiated the sale of the Ranch for

$14 million, signing an agreement for its sale in December 2013.

3 Raymond was designated manager of the Ranch in its

Operating Agreement. He had lived for many years on an

adjacent parcel in the house located on 78 acres of land which

was also left to him in article 5.3 of the Trust.

Jenifer’s share included a provision similar to that for

Raymond, referencing a certain residence in Montana if the Trust

then owned it.

5



The sale price represented a gain over the estate tax basis for the

Ranch of approximately $6.8 million.4

Prior to presenting the sale to the probate court for

approval, the Trustee distributed to the Blech Children a

financial analysis (the spreadsheet) which contained estimated

allocations of assets in the trust estate to each beneficiary

pursuant to the terms of the Trust, also allocating estimated

expenses chargeable to each sibling, as well as net distributable

amounts to each. The second line of the spreadsheet contained

the following: “For Discussion Purposes – Not Final Calculations

and May Not Be Relied Upon for Any Purposes.”

On February 13, 2014, the probate court approved the sale,

which closed on March 25, 2014. The income tax on the sale was

charged against Raymond’s share.

The Blech Children became engaged in numerous intrafamily

disputes, including those concerning allegations of

mismanagement of a 19-story office tower owned by the Trust;

allegations that two of the siblings had received improper

distributions; and allegations of improper actions by Raymond

acting as executor of the will. These disputes led to lawsuits

among the Blech Children; by the then-trustee (Union Bank)

against certain of the Blech Children; the filing by Robert and

Jenifer of a petition for suspension of Raymond’s powers and his

removal as executor; the filing of objections to Raymond’s First

Account of Executor; and the filing by Raymond of a Petition for

Contractual Indemnity and other relief arising out of his actions

as executor. The Blech Children reached a tentative settlement

4 The income tax on this sale was estimated at 33 percent of

the gain, or approximately $2,376,000.

6



of their disputes over Raymond’s work as executor of the will six

days prior to a July 2014 court hearing on that matter. That

settlement was memorialized in a Settlement Agreement and

Release, executed as of August 27, 2014 (the 2014 Settlement

Agreement), in which the Blech Children agreed upon mutual

releases of all claims, known or unknown, specifically referencing

and waiving their rights under Civil Code section 1542,

reserving, however, their individual rights to pursue certain

claims (e.g., the right to dispute expenses of administration of the

estate and trust arising on and after August 1, 2014, or not paid

prior to that date).5

Paragraph 15 of the 2014 Settlement Agreement specifies

that each of the Blech Children “takes complete responsibility for

any tax liability which may arise from that party’s receipt of any

consideration, asset . . . or any other form of monetary or

nonmonetary value received under this Agreement or in

connection herewith, including from the Estate, the Trust, any

asset of the Estate or Trust . . . [or] Blech Ranch Company, LLC

. . . . Each party agrees that any tax liability, whether local,

state, federal or other, arising from such receipt by or to that

party . . . including but not limited to property taxes,

reassessment penalties, gift taxes, income taxes, or estate taxes,

shall be that party’s sole responsibility.”

5 This 2014 Settlement Agreement, among the Blech

Children only, is to be distinguished from two settlement

agreements, among different groups of the Blech Children and

the Trustee, and which we describe and reference, post, as the

2015 Settlement Agreements.

7



The Trustee filed its First Account and Report of Trustee

and Petition for Approval Thereof; Petition for Allowance of

Extraordinary Trustee’s Fees (the Petition) on October 29, 2014.

The probate court granted an extension of time in which to file

objections to the Petition, setting the deadline to do so at

January 15, 2015. On that date, Raymond filed a set of

objections, as did Robert and Jenifer. Following the Trustee’s

filing of responses to his objections, on May 19, 2015, Raymond

filed a Supplement to Objections (Supplemental Objections) in

which he raised for the first time the objection that the gift of the

Ranch to him had been improperly characterized as a specific gift

when, in his view, it should be characterized as a residuary gift.

If characterized as a residuary gift, Raymond argued, the

“expenses and costs of such gifts should be borne by the Trust as

a whole.”6

At the June 11, 2015 trial setting conference on the

Petition, and with the consent of the parties, the probate court

bifurcated Raymond’s Supplemental Objections, setting them for

determination in advance of hearing the parties’ other objections

to the Petition.

At the conclusion of the hearing on the Supplemental

Objections on July 13, 2015, the probate court affirmed the

Trustee’s deduction of the income tax and other expenses

attributable to the Ranch from the proceeds of the sale and from

6 Thus, the $2.3 million in income tax on the sale of the

Ranch (see fn. 4, ante) would have been shared among all of the

Blech Children, rather than being paid from Raymond’s

inheritance alone.

On April 6, 2015, Raymond’s counsel had written a letter to

the Trustee’s counsel in which he raised the same argument.

8



Raymond’s share of the inheritance, rejecting Raymond’s

contrary claims, and specifically finding that the Trustee’s

actions “satisfied the intent of the Trustor, Arthur Blech.”7 The

probate court also ruled Raymond had “consented to and affirmed

[the Trustee’s] treatment of the Blech Ranch gift [pursuant to

Probate Code section 16465], and the other Beneficiaries relied

upon Raymond’s actions, and Raymond is thus estopped from

now challenging that treatment.” In addition, it ruled Raymond

had released the specific objections made in his Supplemental

Objections by signing the 2014 Settlement Agreement. The

probate court filed an Order Overruling Raymond Blech’s

Supplement to Objections to Trustee’s First Account and Report

on August 19, 2015 (August 19, 2015 Order) setting out these

determinations. Notice of entry of that order was given on

September 10, 2015.

Two months later, on September 28, 2015, Robert and

Jenifer sought to enforce the 2014 Settlement Agreement by

filing their Motion to Enter Judgment on Settlement Agreement,

Enforce Settlement Agreement, and for Attorneys’ Fees and

Costs. The probate court considered this motion to be

“premature,” and, on October 30, 2015, placed it off calendar.

Seeking to overturn the August 19, 2015 Order, Raymond

filed a motion for new trial and a motion to vacate. The probate

7 The probate court stated it was relying in part on articles

5.5 and 5.6 of the Trust and Probate Code sections 21117, 21118,

and 16374, subdivision (a).

The court also stated both that “[Arthur] included [the

Ranch] in the part [i.e., article 5.4(b) of the Trust] that says that

Raymond will get 35 percent” and that the gift of the Ranch was

not a residuary gift. As we discuss, post, these statements are

contradictory and the latter is an error of law.

9



court denied these motions on October 30, 2015, noting no

judgment had been entered and the orders made in August

following the trial on the bifurcated issue were not separately

appealable.

During the late summer and fall of 2015, the parties had

negotiated and reached agreements to resolve all of the objections

to the Petition except for Raymond’s Supplemental Objections.

They set out their settlements in two agreements, one among the

Blech Children other than Raymond and the Trustee, and

another between Raymond and the Trustee. (These documents

are collectively referred to as the 2015 Settlement Agreements.)

In the latter agreement, Raymond reserved his right to appeal

the probate court’s August 19, 2015 Order. With the 2015

Settlement Agreements signed, the Blech Children stipulated to

have the probate court enter an order approving the Petition

based on those agreements, also preserving Raymond’s

Supplemental Objections for appeal. The probate court filed its

Order Granting Stipulated Ex Parte Application for Entry of

Order Approving Settlement of Trustee’s First Account on

October 23, 2015 (October 23, 2015 Order).8

8 We have considered – and reject – the argument that the

October 23, 2015 Order left unresolved Raymond’s Supplemental

Objections. As we read this Order in the context of the

proceedings that had taken place in the probate court up to

October 23, 2015, the Order signed and filed that date fully

resolved in the probate court all of the issues between the parties

with respect to the Petition. Thus, the October 23, 2015 Order

was a final order with respect to the Petition, and the proper

subject for an appeal. (See Discussion, Section I, post.) The

probate court judge had the same understanding of this Order

when the issue was discussed on October 30, 2015.

10



On October 30, 2015, the probate court denied Raymond’s

motions for new trial and to vacate its rulings on his

Supplemental Objections and took off calendar Robert and

Jenifer’s motion to enforce the 2014 Settlement Agreement.

On November 6, 2015, Robert and Jenifer renewed their

motion to enter judgment on the 2014 Settlement Agreement and

for attorney fees. Also on that date, Raymond renewed his

motion for new trial and his motion to vacate.

The motion for new trial and motion to vacate were heard

and submitted on December 4, 2015; the probate court’s ruling on

these matters was issued on December 29, 2015. Raymond filed

a notice of appeal of these matters seven days prior to the ruling

issued by the probate court, on December 22, 2015. The court

denied both motions in its December 29, 2015 ruling.

Robert and Jenifer’s motion to enter judgment and for

attorney fees and costs was heard and granted on January 7,

2016.9 Raymond filed a timely notice of appeal of these rulings

on February 4, 2016.

9 Because the record reflects two efforts to obtain entry of

judgment but no judgment appears in the record on appeal, we

sent a letter to the parties inquiring, inter alia, if a judgment had

ever been entered. In response to our letter, Raymond, on the

one hand, and Robert and Jenifer, on the other, filed requests

that we take judicial notice of the judgment entered on

February 19, 2016. While we grant those requests (Evid. Code,

§§ 452, subd. (d) & 459, subd. (a)), we do not find these judgments

relevant to resolving the issues raised by the several notices of

appeal.

For reasons we discuss in footnote 8, ante, and more fully in

the text, post, the October 23, 2015 Order fully resolved the

issues in the Trustee’s Petition then before the probate court and

11



Robert and Jenifer filed a second motion, for additional

attorney fees and costs, which the probate court also granted, and

is itself an appealable order. We note that it was entered in part

based on the 2014 and 2015 Settlement Agreements among the

parties which contained provisions authorizing a court to enforce

the terms of those agreements. The October 23, 2015 Order

granted the Trustee’s Petition, also making reference to these

settlement agreements and approving their terms.

It was not until February 2016 that the first of the two

“judgments,” was signed and filed. This was well after the

probate court no longer had jurisdiction over the matters

determined in the October 23, 2015 Order as a consequence of

Raymond’s December 22, 2015 appeal, which terminated the

probate court’s jurisdiction over the orders identified in the

December 2015 notice of appeal, including the October 23, 2015

Order. (Code Civ. Proc., § 916, subd. (a); see Critzer v. Enos

(2012) 187 Cal.App.4th 1242, 1249 [trial court lacked jurisdiction

to enter a judgment while an appeal was then pending]; Varian

Medical Systems, Inc. v. Delfino (2017) 35 Cal.4th 180, 198-199

[further trial court proceedings on issues addressed in notice of

appeal were beyond trial court’s jurisdiction and void]; see

Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs

(The Rutter Group 2017) ¶ 7:2.)

Also following our inquiry, Robert and Jenifer sought

judicial notice of the judgment entered on April 25, 2016,

reflecting the order granting them attorney fees, filed March 18,

2016. That order was independently appealable; the April

judgment was issued after the probate court had lost jurisdiction

in that matter. (Apex LLC v. Korusfood.com (2013) 222

Cal.App.4th 1010, 1015; see also Sjoberg v. Hastoff (1948) 33

Cal.2d 116, 119 [appeal allowed if the order is final in a collateral

proceeding “growing out of the action”].) The appeal of this order

was based on the March order, and properly so. For these

reasons, we do not give further consideration to these two

postorder “judgments.”

12



from which Raymond filed a timely notice of appeal on May 2,

2016. With the stipulation of the parties, we consolidated these

appeals.

CONTENTIONS

Raymond frames the primary issue on appeal as whether

the probate court erred in allocating the postdeath appreciation

in the Ranch among all of the Blech Children (with a consequence

that his share in that appreciation was limited to his 35 percent

of the residue) while charging Raymond with all postdeath taxes

and expenses on the sale of the Ranch. Raymond also contends

the probate court erred in finding he: (a) released any objections

to the Trustee’s allocations by his execution of the 2014

Settlement Agreement with his siblings, (b) consented to those

allocations, and (c) is barred by equitable estoppel or laches from

asserting his objections to the Trustee’s treatment of his interest

in Arthur’s Trust. And, Raymond challenges the attorney fee

awards made to his siblings as prevailing parties in the probate

court.

Robert and Jenifer, joined by Richard, dispute Raymond’s

contentions, arguing: (a) the release contained in their 2014

Settlement Agreement precludes Raymond from prevailing on

any of his claims; (b) he is estopped from asserting his claim; (c)

he is barred by laches from doing so; (d) the probate court

properly upheld the Trustee’s allocation of gain; and (e) the

attorney fee awards were proper.

The Trustee argues: (a) Raymond disclaimed in the

probate court the allocation argument he now asserts; (b) his

objections to the Trustee’s accounting were barred because he

accepted the distribution of the net proceeds from the sale of the

Ranch without then raising the impact of the distribution on the

13

final amount to be allocated to him; and (c) he released all of his

claims in the 2014 Settlement Agreement.

DISCUSSION

I. APPELLATE JURISDICTION

Before addressing the merits of Raymond’s contentions, we

must assess which of the matters identified by Raymond in his

four notices of appeal present issues within our appellate

jurisdiction.

A. Whether an order is appealable

An order is appealable only when declared to be so by

constitution or by statute. (Northern Trust Bank v. Pineda (1997)

58 CalApp.4th 603, 606, citing Skaff v. Small Claims Court

(1968) 68 Cal.2d 76, 78.) Trust administration matters are

among those as to which the right to appeal and the jurisdiction

of appellate courts are regulated by statute. (Northern Trust,

p. 606; H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96

Cal.App.4th 1357, 1365.)

Code of Civil Procedure section 904.1 sets forth the

direction for our analysis. Subdivision (a)(10) provides: An

appeal lies “[f]rom an order made appealable by the provisions of

the Probate Code . . . .” Probate Code section 1300 states

multiple bases for appeal, providing, in part: “In all proceedings

governed by this code, an appeal may be taken from the making

of, or the refusal to make, any of the following orders: [¶] (a)

Directing, authorizing, approving, or confirming the sale, lease,

encumbrance, grant of an option, purchase, conveyance, or

exchange of property. [¶] (b) Settling an account of a fiduciary.

[¶] (c) Authorizing, instructing, or directing a fiduciary, or

approving or confirming the acts of a fiduciary. [¶] (d) Directing

or allowing payment of a debt, claim, or cost. [¶] (e) Fixing,

authorizing, allowing, or directing payment of compensation or

14

expenses of an attorney. [¶] (f) Fixing, directing, authorizing, or

allowing payment of the compensation or expenses of a fiduciary.”

An appeal from the October 23, 2015 Order concerning the

Petition is within the scope of matters made appealable by this

section.

In addition, Probate Code section 1304, subdivision (a)

provides that “[a]ny final order under Chapter 3 (commencing

with Section 17200 [of the Probate Code])” is appealable. (Estate

of Stoddart (2004) 115 Cal.App.4th 1118, 1125-1126; Eisenberg

et al., Cal. Practice Guide: Civil Appeals and Writs, supra,

¶ 2.191, p. 2-137.) In determining whether a matter is within the

scope of Probate Code section 17200, the court determines the

effect of that order rather than the label given to it. (Estate of

Miramontes-Najera (2004) 118 Cal.App.4th 750, 756.) For

example, although an order granting an accounting is not

expressly made appealable by Probate Code section 1304, such an

order is appealable when it implicitly decides an issue which may

be the subject of an appealable order. (Esslinger v. Cummins

(2006) 144 Cal.App.4th 517, 522 [order determining the existence

of a power, duty, or right under a trust is appealable]; see also

Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1411 [same];

Gridley v. Gridley (2008) 166 Cal.App.4th 1562, 1586-1587

[same].)10

10 There is an exception to this rule, but it is limited to

whether a beneficiary may obtain an accounting. Under that

circumstance, an order to account is appealable when it expressly

or implicitly decides other issues that could be the subject of an

appealable order. (Esslinger v. Cummins, supra, 144

Cal.Appp.4th at p. 522.)

A second subdivision of Probate Code section 1304,

subdivision (c), makes appealable “[a]ny final order under Part 1

15



Matters not authorized by statute for appellate review

must be dismissed. Thus, when an appellate court determines

that it lacks appellate jurisdiction to hear a matter presented to

it, it must act on its own motion and dismiss such an

unauthorized appeal. (Rubin v. Western Mutual Ins. Co. (1999)

71 Cal.App.4th 1539, 1548; Northern Trust Bank v. Pineda,

supra, 58 Cal.App.4th at p. 608.)

B. Raymond’s appeals

With these principles set forth, we address the several

appeals Raymond has filed. (Although the appeals are

consolidated, we must nevertheless address each of the now

consolidated requests to determine whether exercise of our

jurisdiction is proper as to each.) The following list sets out the

date of filing of the particular notice of appeal, followed by the

date and a brief description of the orders to which that appeal is

directed:

(commencing with Section 20100) . . . [of the Probate Code].”

Section 20100 concerns the determination of liability for the

payment of estate taxes. In this case, the issues include which of

the Blech Children should bear the effect of payment of the

capital gains tax on the sale of the Ranch, an income tax issue not

addressed by the cited statute.

16



(1) November 9, 2015: appealing the August 19, 2015

Order rejecting Raymond’s Supplemental Objections and the

October 30, 2015 Denial of Motion for New Trial and Motion to

Vacate pursuant to Probate Code sections 1300, subdivisions

(b)11 and (c)12 and section 1304, subdivision (a).13

(2) December 22, 2015: appealing the October 23, 2015

Order and the December 22, 2015 Denial of Motion for New Trial

and Denial of Motion to Vacate.

(3) February 4, 2016: appealing the January 7, 2016 order

issued under Probate Code sections 1300, subdivisions (b), (c),

(e)14 and 1304, subdivision (a).

(4) May 2, 2016: appealing the March 18, 2016 order

(citing the same statutes as the February 4, 2016 appeal).

1. The appeal from the October 23, 2015 Order

This appeal, as indicated by its description, is from the

Order resolving all issues with respect to the Petition (and

preserving Raymond’s contentions regarding the nature of the

gift of the Ranch and how the Ranch should be valued).

Raymond clearly objected to certain aspects of this Order and, for

11 This statute authorizes appeal from an order settling an

account of a fiduciary.

12 This statute authorizes an appeal from an order

“authorizing, instructing, or directing a fiduciary, or approving or

confirming the acts of a fiduciary.”

13 As noted, ante, this statute authorizes appeal of any order

listed in Probate Code section 17200 which is final (with

exceptions not relevant in this case).

14 The terms of this statute are set out in the text, ante.

17



the reasons discussed, ante, this is an appealable order. (Code

Civ. Proc., § 904.1, subd. (a)(10); Prob. Code, §§ 1300, subds. (b) &

(c), 1304, subd. (a).)

2. The appeal from the August 19, 2015 Order

By his November 9, 2015 notice of appeal, Raymond also

seeks to appeal the probate court’s August 19, 2015 Order

rejecting the contentions asserted in his Supplemental

Objections. However, the court’s ruling filed that date did not

fully resolve the Petition. Indeed, the only issue resolved was

that bifurcated from the Petition for determination in advance of

all other issues (with the intention of aiding the parties in

settling all of those other issues in a then-scheduled mediation

session).

The August 19, 2015 Order is a clear example of an order

on a bifurcated issue, leaving all other issues presented by the

Petition for later determination. The petition that resulted in

Raymond’s eventual filing of his Supplemental Objections (the

Petition) presented a host of issues – and all but one remained for

determination once the August 19 Order 2015 was issued. As the

order listed in this notice of appeal did not resolve all issues

presented in the Petition, no appeal lies from it, and this appeal

must be dismissed.

3. Denials of the Motions for New Trial

Raymond filed two motions for new trial, the first

concerning the August 19, 2015 Order and the second concerning

the October 23, 2015 Order.

There are two reasons why the appeals from the denials of

the two motions for new trial are unavailing. First, a motion for

new trial is premature if it is made before all issues have been

tried. (Cobb v. University of So. California (1996) 45 Cal.App.4th

18

1140, 1144; see Cal. Rules of Court, rule 3.1591(c).) Thus, in Ruiz

v. Ruiz (1980) 104 Cal.App.3d 374, a notice of intention to move

for new trial served and filed before the completion of trial of all

issues presented was held to be premature and void. (Id. at pp.

378-379; Cobb, at p. 1144; Ochoa v. Dorado (2014) 228

Cal.App.4th 120, 132.)

Because the motion for new trial in this case denied on

October 30, 2015, sought review of the August 19, 2015 Order on

a bifurcated issue, it is fatally flawed for reasons discussed, ante.

Second, that motion for new trial and the second motion for

new trial filed to challenge the October 23, 2015 Order, in which

the probate court did finally resolve all of the issues presented in

the Petition, suffer an additional, shared defect: The denial of a

motion for new trial is not appealable. Rather, such a ruling is

reviewable on appeal from the underlying judgment. (See Code

Civ. Proc., § 904.1, subd. (a)(2); Walker v. County of Los Angeles

Metropolitan Authority (2005) 35 Cal.4th 15, 18-19, citing

Rodriguez v. Barnett (1959) 52 Cal.2d 154, 156; Hamasaki v.

Flotho (1952) 39 Cal.2d 602, 608.)

4. The Motion to Vacate the August 19, 2015

Order

Raymond’s Motion to Vacate the August 19, 2015 Order

suffers from the same defect as his motion for new trial based on

the order of that date: The motion is directed to a bifurcated

order rather than a final judgment. While the statutory basis for

the motion to vacate is Code of Civil Procedure section 663 rather

than Code of Civil Procedure sections 656 and 657 applicable to

motions for new trial, the two motions have in common that they

can only be made once a judgment is entered. (E.g., Glen Hill

19

Farm LLC v. California Horse Racing Bd. (2010) 189 Cal.App.4th

1296, 1301.)

5. The Motion to Vacate the October 23, 2015

Order

Raymond’s Motion to Vacate the October 23, 2015 Order

addresses the denial of his motion to vacate the Order entered by

the probate court that date and as to which Raymond has filed a

valid appeal (discussed, ante).

The denial of a motion to vacate a judgment is appealable

in the same manner as a judgment or order such as that filed

October 23, 2015. It is not treated like the denial of a motion for

new trial. (Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 130, 133

[order denying motion to vacate is appealable even though the

same grounds may be urged on an appeal from the judgment];

9 Witkin, Cal. Procedure (5th ed. 2008) Appeal § 200, pp. 275-

277.) However, there is older authority that suggests that there

is no appeal from denial of a motion to vacate an order (as

distinct from a judgment), at least when application is made

pursuant to Code of Civil Procedure section 473. (E.g., In re

Rouse’s Estate (1957) 149 Cal.App.2d 674, 679-680.) We need not

resolve this issue because the appeal from the denial of the

motion to vacate the October 23, 2015 Order raises the same

issues as may be raised in an appeal from that order, and as to

which Raymond has filed a timely appeal.15

15 Raymond presents no argument specifically directed to the

denial of this motion, likely because of the identity of issues

presented as noted in the text accompanying this footnote.

That Raymond’s notice of appeal on this basis was

premature (as it was filed prior to the probate court’s relevant

ruling on January 7, 2016), is not fatal. (Estate of Haviside

20



6. The February 4, 2016 and May 2, 2016 Notices

of Appeal

In his notices of appeal filed February 4, 2016, and May 2,

2016, Raymond seeks our review of the probate court’s awards of

attorney fees and costs to Robert and Jenifer, based on orders

awarding fees to them on January 7 and March 18, 2016, and the

award of such fees and costs to Richard on January 7, 2016.

These awards were made based on a provision in the 2014

Settlement Agreement and are proper subjects of appeal based on

that contract.16

(1980) 102 Cal.App.3d 365, 368 [premature filing of such a

motion does not deprive the appellate court of jurisdiction to hear

it].)

16 In his notices of appeal of these orders, Raymond relies on

Probate Code sections 1300, subdivisions (b), (c) and (e) and

section 1304, subdivision (a). While we agree these orders are

appealable, in our view the source of that authority arises from

the circumstance that what the moving parties sought was

enforcement of a contractual provision for fees contained in the

2014 Settlement Agreement. Such an appeal is authorized by

Code of Civil Procedure section 904.1, subdivision (a)(2). The

probate court had jurisdiction to entertain these motions under

“the broad equitable powers that a probate court maintains over

the trust within its jurisdiction” rather than “under [its]

supervisory power.” (Rudnick v. Rudnick (2009) 179 Cal.App4th

1328, 1333, citing Hollaway v. Edwards (1998) 68 Cal.App.4th

94, 99, original italics.) In addition, it has concurrent jurisdiction

with the civil court over actions and proceedings. (Prob. Code,

§ 17000, subd.(b).) We make this distinction as the amounts

awarded are not chargeable against the Trustee.

21



II. RAYMOND DID NOT WAIVE BELOW THE

ALLOCATION ARGUMENT HE ASSERTS ON APPEAL

Raymond contends a proper construction of the Trust and

principles applicable to its funding require that he be allocated

all of the appreciation in the value of the Ranch from the date of

Arthur’s death and that the probate court erred in determining

he had waived this contention.

The Trustee contends Raymond did not argue in the

probate court that “the post-death appreciation of the ranch

should not count against his 35 percent [residuary] share,” and

that Raymond cannot argue for the first time on appeal that he

should be credited with all of the postdeath appreciation in the

Ranch. However, in an effort to explain the basis for its

contention on appeal, the Trustee mixes concepts in a way that

does not clearly state Raymond’s position, either in the probate

court or on appeal.

Raymond correctly summarizes what occurred below: “As

accounted for by [the Trustee], Raymond received no benefit from

the inclusion of [the] Ranch in his 35% interest [in the residue]

that he would not have received had [Arthur] just left [the] Ranch

to the Trust generally.[17] But [Raymond] was saddled with

100% of the tax burden.”

Raymond’s principal argument to the probate court was

that the gift of the Ranch was a residuary gift under Probate

17 As we shall discuss, post, Raymond errs: Arthur

designated the Ranch as a means of funding his residuary gift to

Raymond, rather than as a separate, specific gift to him.

22



Code section 21117, subdivision (f);18 as such, all of the postdeath

appreciation, in addition to all of the taxes and expenses

attributable to the operation and sale of the Ranch, properly

would have been allocated among all of the siblings; but that, if it

were a specific gift19 – as the probate court ultimately ruled: (1)

the taxes and expenses for the Ranch should be allocated to him

alone, and (2) he also is entitled to all of the postdeath

appreciation in the Ranch.20

To overcome the Trustee’s claim that he may not now

advance this argument, Raymond further argues that on appeal

he seeks “the proper application of the consequences of the

classification of the gift of the ranch as a specific gift to the

undisputed facts.”21 Thus, Raymond contends he is arguing a

theory on appeal, which, albeit new, presents only a purely legal

question, and one resulting from what he also claims is a

partially flawed determination by the probate court. He may do

18 Probate Code section 21117, subdivision (f) provides: “A

residuary gift is a transfer of property that remains after all

specific and general gifts have been satisfied.”

19 Probate Code section 21117, subdivision (a) provides: “A

specific gift is a transfer of specifically identifiable property.”

20 The appreciation in the value of the Ranch between the

date of Arthur’s death and the sale date was significant: during

that period, the Ranch nearly doubled in value.

21 We also reject the Trustee’s argument that Raymond’s

present contention was waived during argument in the probate

court on July 13, 2015. Raymond’s argument on appeal is

different, for reasons described in this section of this opinion.

23



so. (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983)

34 Cal.3d 412, 417 [appellate court may address purely legal

questions presented for the first time on appeal when no factual

determinations are required]; Ward v. Taggart (1959) 51 Cal.2d

736, 742 [same].)

III. RAYMOND’S OBJECTIONS WERE NOT BARRED BY

PROBATE CODE SECTIONS 16463 AND 16465

The Trustee contends the probate court correctly concluded

that Probate Code sections 16463 and 16465 barred Raymond’s

Supplemental Objections. In support of that ruling, the Trustee

points out it kept Raymond informed it was allocating the Ranch

to a subtrust created for him, and expenses of Ranch operations

and, most significantly, the income tax due for the sale of the

Ranch, would be taken from that subtrust; Raymond never

objected; and his counsel had sent the Trustee a spreadsheet

which contained data consistent with the Trustee’s proposed

actions. The Trustee also argues neither Raymond nor his

counsel had objected to this treatment until April 2015, when he

filed his Supplemental Objections.

Raymond argues these statutes do not apply to his

Supplemental Objections, and his Supplemental Objections are

directed to the accounting and allocations which the Trustee has

made and proposes to make to the Blech Children and not to

anything that occurred in connection with the sale of the

Ranch.22

22 Although the Trustee argues the substantial evidence test

is to be used to analyze this issue, our review is de novo, as we

are discerning the meaning of statutes on undisputed facts.

(People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th

415, 432.)

24



Probate Code section 16463 provides in part: “(a) Except

[in circumstance not relevant in the present case], a beneficiary

may not hold the trustee liable for an act or omission of the

trustee as a breach of trust if the beneficiary consented to the act

or omission before or at the time of the act or omission.” And,

Probate Code section 16465 provides in part: “(a) Except [in

circumstance not relevant in the present case], if the trustee, in

breach of trust, enters into a transaction that the beneficiary may

at his or her option reject or affirm, and the beneficiary affirms

the transaction, the beneficiary shall not thereafter reject it and

hold the trustee liable for any loss occurring after the trustee

entered into the transaction.”

Raymond agrees he consented to the sale of the Ranch,

pointing out his objections instead are to the accounting which

the Trustee petitioned the probate court to accept. Thus,

Raymond is raising a difference of opinion regarding an

accounting matter; he is not alleging a breach of trust by the

Trustee. The remedy, if Raymond’s objection to the accounting

petition is successful, is to change specified allocations among the

various trusts, i.e., to require the Trustee to comply with

Raymond’s view of the proper funding of the gifts to the Blech

Children, not to hold the Trustee liable for damages or to obtain

restitution from it. Thus, Probate Code section 16463 has no

application to the present dispute. Nor do Raymond’s actions

come within the issues addressed in section 16465, as Raymond

has no objection to the manner of sale of the Ranch or to the sale

price; indeed, he freely admits he encouraged and advocated that

sale. For these reasons, the probate court erred in finding these

sections applicable, and this argument by the Trustee is without

merit.

25

IV. RAYMOND IS NOT ESTOPPED FROM ASSERTING

HIS OBJECTIONS TO THE TRUSTEE’S ACCOUNTING

Raymond contends the probate court erred in determining

he “both consented to and affirmed [the Trustee’s] treatment of

the [gift of the Ranch], and the other Beneficiaries relied upon

Raymond’s actions, and Raymond is thus estopped from now

challenging that treatment.”

Establishing an equitable estoppel is dependent upon proof

of four elements: “(1) the party to be estopped must know the

facts; (2) the estopped party must intend that his conduct shall be

acted upon or must act in a way that causes the other party to

believe that was his intent; (3) the party asserting estoppel must

be unaware of the true facts; and (4) he must detrimentally rely

on the other party's conduct. (Estate of Bonanno (2008) 165

Cal.App.4th 7, 22.) If an estoppel is established, the estopped

party is deprived of applicable rights or defenses. (Ibid.) While

estoppel generally is a question of fact, if the facts are undisputed

and only one reasonable conclusion can be drawn from them, it

becomes a question of law. (Ibid.)” (Estate of Bonzi (2013) 216

Cal.App.4th 1085, 1106.)

As the facts relevant to analysis of this issue in this case

are undisputed, we determine the matter de novo. (People ex rel.

Lockyer, supra, 24 Cal.4th at p. 432.) In making this

determination, we observe that the doctrine of equitable estoppel

is based on principles of equity and fair dealing and provides that

a person may not deny the existence of a state of facts if that

person had intentionally led others to believe a particular

circumstance to be true and to rely upon that belief to the

detriment of the other party. (Lantzy v. Centex Homes (2003) 31

26

Cal.4th 363, 383; City of Oakland v. Oakland Police & Fire

Retirement System (2014) 224 Cal.App.4th 210, 239-240.)

In this case, the argument that Raymond has led his

siblings to rely on his actions to their detriment is unconvincing.

There are no facts that he encouraged any of his siblings to take

any action on his or her own behalf; all had the same access to

information and Raymond was entirely focused on his own

interests. Also, the key document relied upon in support of the

claim that Raymond is estopped is a spreadsheet containing

estimates of allocations among the beneficiaries prepared by the

Trustee, not Raymond. Further, each of the versions of this

spreadsheet is headed with the statement that it is “For

Discussion Purposes – Not Final Calculations and May Not Be

Relied Upon for Any Purposes.” All of the Blech Children

received the same information and all had the same access to the

Trustee. 23

While one might argue the spreadsheets put the

beneficiaries on notice of what was likely to occur with respect to

the ultimate distribution of assets, doing so truncates the

statutory process of petitions for accountings. That statutory

process is replete with requirements for disclosures and accuracy

in its financial schedules. Holding that any beneficiary is

estopped from asserting a contention with respect to, e.g., an

accounting spreadsheet once a petition for accounting is filed on

the basis that the beneficiary did not object to a prefiling version

23 During oral argument, it was pointed out that another

spreadsheet had been distributed six months earlier which also

included estimated amounts to be allocated subject to verification

of certain information and conclusion of pending transactions. It

did not have the quoted qualifying language.

27



of the document actually filed, deprives each beneficiary who

received the earlier version of the protections provided by the

statutory requirements for accountings and is inequitable. Thus,

the circumstance that the Trustee circulated preliminary

calculations to which no objection was made does not estop any

recipient to later argue a position based on the final version of an

accounting even if it was also discernable in a “For Discussion

Purposes” version of that accounting. It is the filing of the

petition for accounting that compels a party desiring to present

any opposition to it to do so.

Nor was Raymond’s conduct inconsistent with the legal

position he was then arguing that was predicated upon the Ranch

being a residuary gift.

The arguments which the siblings make are based on what

they perceive to be a contradiction between Raymond’s silence

during the sale of the Ranch on the one hand as to issues other

than its sale, and Raymond’s objections to the accounting first

asserted once the Trustee filed its petition, on the other.

However, until Raymond was served with the Petition he was

under no obligation to assert his legal contentions.

Further, the circumstance that the Trustee serves as

trustee precludes it from making an argument based on estoppel.

Its role vis-à-vis the parties is to be neutral – fair and accurate.

It has made no argument that it has been prejudiced by

Raymond’s conduct. And, it would be inequitable to allow it to

defeat Raymond’s challenge to its petition for accounting based

on Raymond’s actions that resulted in part from the preliminary

financial presentations it uttered. (See Drake v. Pinkham (2013)

217 Cal.App.4th 400. 406.)

28

We conclude that the probate court erred in finding

Raymond was estopped by his conduct from challenging the

Trustee’s petition for approval of its first accounting.24

V. THE RELEASE

The probate court determined Raymond’s execution of the

2014 Settlement Agreement released the objections he made in

his Supplemental Objections. Raymond contends that ruling was

error, arguing the express terms of his agreement with his

siblings allowed his later-filed Supplemental Objections. His

siblings dispute his contention, arguing the release contained in

the 2014 Settlement Agreement bars Raymond from making any

objection to the accounting in the Petition notwithstanding that it

was filed by the Trustee after the date of execution of the

release.25 We conclude that, although it is broad in scope, the

24 The siblings’ claim that Raymond’s contentions are barred

by the doctrine of laches also fails. An essential element of that

claim is prejudice (e.g., Miller v. Eisenhower Medical Center

(1980) 27 Cal.3d 614, 624). The siblings have made no such

showing. Their claims that they each would be required to return

more than $1 million to the Trust to be reallocated are not

supported by citations to the record. We therefore do not credit

them. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211,

1239; Aguimatang v. California State Lottery (1991) 234

Cal.App.3d 769, 796.)

25 The Trustee “joins” in the arguments advanced by the

siblings, relying on California Rules of Court, rule 8.200(a)(5).

Raymond argues the Trustee does not have standing to address

this issue because it was not a party to the 2014 Settlement

Agreement and, as trustee, it is “obligated to deal impartially

with all the Beneficiaries (Cal. Probate Code § 16003).” Because

the Trustee advances no distinct argument on this issue, and we

29



release did not preclude any of the Blech Children from filing

objections to the accounting presented in the Petition.

A. Additional facts

The Blech Children executed the 2014 Settlement

Agreement as of August 27, 2014. Raymond signed on his own

behalf and as Executor of the estate of Arthur Blech. His siblings

signed as individuals. All of the siblings were represented by

counsel, each of whom also signed “as to form.”

We focus our discussion on those paragraphs of the 2014

Settlement Agreement which bear directly on the issue to be

resolved. Eight “Recitals” precede the 31-paragraph

“Agreement.” Recital G states that “Each Blech Beneficiary

agrees and acknowledges that he/she has a right to seek a Court

order charging certain expenses of administration of the Estate

or Trust (including legal fees) against another party’s share of the

Trust (‘Charging Claims’). The parties agree that all rights

relating to the Charging Claims through the date of this

Agreement are resolved and released pursuant to the terms and

conditions of this Agreement except for the right to object to

certain actions related to specified probate matters.

The first paragraph of the body of the Agreement

incorporates the Recitals “into this Agreement as set forth in

full.” Paragraph 2 provides the terms of the Agreement “govern

and control” in the event of “any conflict, inconsistency, or

incongruity, between any provision of this Agreement and any

provision of the Will or Trust . . . .” Paragraph 4 directs certain

resolve it adversely to those who advocate it, we do not otherwise

address the Trustee’s purported joinder.

30



siblings to order the Trustee to make specified payments to other

siblings.

Paragraph 5, headed “Estate Proceeding,” contains five

lettered subparagraphs, addressing the resolution of debts owed

to the estate, dismissal of actions concerning Raymond’s actions

as executor, and resolution of contentions regarding estate tax

and income tax returns for the estate.

Paragraph 6 contains nine “Instructions to Trustee” in

which the Blech Children “collectively and unanimously instruct”

the Trustee to do certain things, mostly consisting of payments to

a particular sibling or to account for an expenditure by or on

behalf of a sibling in a particular way, including the following:

“All transactions set forth in the Executor’s First Account

shall be treated as expenses of Estate administration,” rather

than being charged to any of the Blech Beneficiaries. The

expenses to be so treated include “expenditures for the benefit of

the 3,050 acre ranch” that Robert, Jenifer and Richard allege

have “benefited Raymond personally. . . .” (¶ 6(b).)

“The cost of roof repair to Jenifer’s Montana residence (in

the amount of $13,025.00) shall be an expense of Trust

administration, and shall not be charged against [her] share of

the Trust.” (¶ 6(c).)

Provide the Blech Children with statements of the

Trustee’s trustee and legal fees and work with them “to resolve,

without litigation,” the amount of such fees. The Blech Children

reserve to themselves the right to challenge the Trustee’s “trustee

and legal fees.” (¶ 6(g).)

In paragraph 7, the siblings “agree and acknowledge that

the material purposes and considerations for the resolutions

reached . . . are to (i) preserve Estate and Trust resources, (ii)

31

avoid litigation and trial on the Executor’s First Account, and (iii)

close the Estate and terminate the Trustee as soon as possible.”

Paragraph 8 states that “This Agreement shall be

enforceable as among all of the parties [and] [t]he Court in the

Estate Proceeding shall retain jurisdiction to enforce the terms of

this Agreement that are related to the Estate . . . .”

Paragraph 10 contains the parties’ mutual releases. With

certain exceptions, including those set out in paragraph 12 (see

discussion, post), the parties release each other and all persons

and entities related to any of the parties from all past or present

claims “of whatever kind or nature,” “whether known or

unknown, suspected or unsuspected, anticipated or

unanticipated, that any or each of them had, has, or might have

arising out of or in any way related to the Trust, Trust

Proceeding . . . or any other claims or issues related thereto.”

Paragraph 11 sets out the release of unknown claims,

which is total except for specified matters. One of the matters as

to which there is no release of unknown claims concerns “the

parties’ rights against [the Trustee] or any successor trustee” as set

out in paragraph 12. 26 (Italics added.)

26 The release, in reliance on Civil Code section 1542,

expressly “acknowledge[s] and agree[s] that [the Blech Children]

are aware that they may hereafter discover claims presently

unknown or unsuspected, or facts in addition to or different from

those which they now know or believe to be true, as to the

matters released herein.” The parties also warranted that “it is

the intention of the parties, and each of them, through this

release to fully, finally and forever release all such matters, and

claims related thereto, which do now exist, may exist or

heretofore have existed.” Their releases were to “remain in effect

as a full and complete release of such matters, notwithstanding

32



Paragraph 12 states: “Nothing in this Agreement, whether

express or implied, including but not limited to the provisions of

Paragraph 10 (Mutual Releases) of this Agreement, is intended to

confer third-party beneficiary status or to confer otherwise any

rights to [the Trustee] (or any successor trustee) . . . . Nor is

anything in this Agreement intended to relieve or discharge the

obligation or liability of any third party to any undersigned party

to this Agreement. Nor shall any provision hereof afford any third

party any right of subrogation, indemnity, contribution, set-off or

action over against any party to this Agreement.” (Italics added.)

In paragraph 13, the parties acknowledge each was

represented by counsel or had the opportunity to consult with

counsel. This representation is confirmed by the signature pages

of the Agreement which contain the signatures of counsel for each

of the Blech Children “as to form.”

B. Discussion

Raymond’s siblings make several preliminary arguments

before focusing on their principal contention, that the release in

the 2014 Settlement Agreement bars Raymond from making the

claims he asserts in his Supplemental Objections and on appeal.

The siblings do not support any of these preliminary claims with

authority, however, and they include in this section of their brief

facts not admitted by the probate court at the July 2015 hearing.

They also acknowledge that those claimed facts were excluded.

As there is neither legal authority nor citation of facts admitted

into evidence below to support these preliminary arguments, we

the discovery or existence of any additional or different claims or

facts relating thereto.”

Notwithstanding this broad language, there is an exception

to its scope, as is now discussed in the text of this opinion.

33



do not consider them. (Harding v. Harding (2002) 99

Cal.App.4th 626, 635; Ellenberger v. Espinosa (1994) 30

Cal.App.4th 943, 948 [brief without legal argument and citation

to authorities on the points made may be treated as waived or

abandoned]; City of Lincoln v. Barringer, supra, 102 Cal.App.4th

at p. 1239 [contentions unsupported by citation to relevant facts

are disregarded on appeal].)

The parties agree the 2014 Settlement Agreement is a

contract, and that we determine its meaning by application of

well-established principles applicable to the construction of

contracts. Thus, our review is de novo; we exercise our

independent judgment as to the meaning of the 2014 Settlement

Agreement because “[i]t is a judicial function to interpret a

contract or written document unless the interpretation turns

upon the credibility of extrinsic evidence. . . . [Thus, we

endeavor] to effectuate the mutual intent of the parties as it

existed at the time of contracting insofar as it is ascertainable

and lawful.” (City of El Cajon v. El Cajon Police Officers’ Assn.

(1996) 49 Cal.App.4th 64, 70-71.)

“ ‘Where the parties have reduced their agreement to

writing, their mutual intention is to be determined, whenever

possible, from the language of the writing alone.’ [Citations.]

‘Contract formation is governed by objective manifestations, not

the subjective intent of any individual involved. [Citations.] The

test is “what the outward manifestations of consent would lead a

reasonable person to believe.” ’ ” (Allen v. Smith (2002) 94

Cal.App.4th 1270, 1277.) “It is the outward expression of the

agreement, rather than a party's unexpressed intention, which

the court will enforce.” (Winet v. Price (1992) 4 Cal.App.4th 1159,

1166.) Thus, in interpreting the contract under review, we are

34

not concerned as much with what the parties might tell us they

meant by the words they used as with how a reasonable person

would interpret those words.

Of equal importance is the rule that “ ‘[a] contract must

receive such an interpretation as will make it lawful, operative,

definite, reasonable, and capable of being carried into effect, if it

can be done without violating the intention of the parties.’ (Civ.

Code, § 1643; see also id., § 3541.)” (People v. Parmar (2001) 86

Cal.App.4th 781, 802.)

Finally, we note that “[t]he whole of a contract is to be

taken together, so as to give effect to every part, if reasonably

practicable, each clause helping to interpret the other.” (Civ.

Code, § 1641.) “[E]ven if one provision of a contract is clear and

explicit, it does not follow that that portion alone must govern its

interpretation; the whole of the contract must be taken together

so as to give effect to every part.” (Alperson v. Mirisch Co. (1967)

250 Cal.App.2d 84, 90.) “ ‘An interpretation which renders part

of the instrument to be surplusage should be avoided.’ (Ticor

Title Ins. Co. v. Rancho Santa Fe Assn. (1986) 177 Cal.App.3d

726, 730.)” (Quantification Settlement Agreement Cases (2011)

201 Cal.App.4th 758, 799.)

There is no doubt: the mutual releases contained in

paragraph 10, and the mutual releases of unknown claims set out

in paragraph 11, are broad and encompassing. It is equally clear

that there are certain exceptions to these releases, including as

relevant to the present matter, the exception from their scope “as

set forth in . . . paragraph 12.” These exceptions include the

reservation of the parties’ rights against the Trustee, specific

exceptions to the releases stated in paragraph 10, as well as

35

exceptions to the breadth of the release of unknown claims set

out in paragraph 11.

With specific reference to Raymond’s argument,

paragraph 12 includes the following limitation on the scope of

other provisions that would – without it – adversely affect

Raymond’s claim: “Nor is anything in this Agreement intended

to relieve or discharge the obligation or liability of any third

party to any undersigned party to this Agreement.”

Raymond argues that the probate court’s decision that his

Supplemental Objections were released in this document is

deficient in three respects: it “is not supported by the express

terms of that agreement, [it] is not supported by the

circumstances surrounding that agreement, and [it] ignores that

the objections were to an Accounting Petition that was first filed

some two months after the [2014 Settlement Agreement].”

The siblings rely on the release of unknown claims

contained in paragraph 11 to support their attempt to validate

the probate court’s ruling. In doing so, the siblings argue “Robert

and Jenifer [with joinder by Richard] have never contended that

[Raymond] gave up all rights to challenge [the Trustee’s]

accounting, or even to seek surcharges against [the Trustee] . . . .

He did, however, give up rights to impose costs on his siblings or

their subtrusts.”

The first difficulty with the siblings’ argument is that there

is no evidence a consequence of Raymond’s argument would be to

impose costs on his siblings. Although the siblings make this

claim, the facts upon which they base it were not admitted below

and we therefore do not consider them or the argument

predicated upon those “facts.”

36

The siblings’ second argument is that the scope of the

waiver of claims under Civil Code section 1542 is so broad as to

preclude Raymond’s claims. In this regard, they point to the text

of paragraph 11, in particular, to the section providing the

signers of the 2014 Settlement Agreement specifically

“acknowledge and agree . . . that they may hereafter discover

claims presently unknown or unsuspected, or facts in addition to

or different from those which they now know or believe to be true,

as to the matters described herein,” as well as to other similar

language.

What they do not do is consider the express limitations on

the scope of that release which we have set out, ante, which

appear both in paragraph 11 and in paragraph 12 (e.g., the

provision in paragraph 12 stating: nothing “in this Agreement

[is] intended to relieve or discharge the obligation or liability of

any third party to any undersigned party to this Agreement”). 27

27 The siblings do concede that the release does not bar

Raymond from challenging an action by the Trustee, but only so

long as they are not adversely affected should he prevail.

The siblings also contend Raymond’s claim is without merit

based on the circumstance that the probate court rejected his

proffer of evidence of his intent in signing the Settlement

Agreement. Their claim is without persuasive force, as

Raymond’s subjective intent is not relevant to either court

properly construing the document. Further, we construe the

document according to the rules articulated in the text, ante; i.e.,

we give the document a reasonable construction based on all of

its provisions rather than on the subjective intent of any of the

parties. (M &F Fishing, Inc. v. Sea-Pac Ins. Managers, Inc.

(2012) 202 Cal.App.4th 1509, 1530 [“ ‘ “It is the outward

expression of the agreement, rather than a party’s unexpressed

37



Thus, their references to the text of the 2014 Settlement

Agreement are unduly selective, resulting in a fatal flaw in their

argument.

Notwithstanding the siblings’ factually unsupported

argument that were Raymond to prevail in his Supplemental

Objections his siblings would be adversely affected, we are bound

to construe all of the terms of the 2014 Settlement Agreement

together, rather than give greater weight to one provision over

another, if possible: our obligation is to construe the document as

a whole. (Powerine Oil Co., Inc. v. Superior Court (2005) 37

Cal.4th 377, 391.)

So construing the document, the siblings’ reliance

exclusively on the broad release language ignores the limitation

on the breadth of that release. It must also be noted that this

exception applies so that any of the Blech Children may file

objections to the Trustee’s accounting. Raymond did exactly that

– and he was not the only sibling to do so. Robert and Jenifer

also filed objections to the Petition, albeit on other grounds.

Thus, the siblings’ argument becomes: We, the siblings may

challenge the Trustee, but Raymond may not do so. We find the

siblings’ claim to be without merit.

VI. CONSTRUCTION OF THE RESIDUARY BEQUEST

AND ALLOCATION OF APPRECIATION IN VALUE OF

THE RANCH

Between the time of Arthur’s death and the sale of the

Blech Ranch, its fair market value increased from $7.2 million to

$14 million, at which price the Ranch was sold. The proceeds of

the sale were allocated to Raymond’s subtrust and the income

intention, which the court will enforce,” ’ ” quoting Paralift, Inc.

v. Superior Court (1993) 23 Cal.App.4th 748, 755.].)

38



taxes on the sale of the Ranch, $2.3 million, were paid from that

source.28 The probate court ruled that this allocation of tax

liability was correct and that it was proper to use the $14 million

valuation in allocating the remainder of the assets of the Trust

among all of the Blech Children in accord with their percentage

shares of the residue of the Trust.

Raymond contends the value of the Ranch should have

been allocated based on its date-of-death value (with Raymond

receiving the entire net proceeds of its sale, including the

appreciation in the value of the Ranch following Arthur’s death)

based on the probate court’s ruling that “The gift of Blech Ranch

to Raymond Blech was not a residuary gift under California

Probate Code § 21117(f).”29

Raymond’s argument in support of this claim is that the

probate court’s ruling that the Ranch was not a residuary gift

meant that it must be valued at its date-of-death value of $7.2

million rather than at its $14 million sale price (as a substitute

for its date-of-distribution value). Thus, Raymond contends the

probate court’s ruling granting the Trustee’s Petition, in which

28 That Raymond is solely responsible for the income tax on

the sale of the Ranch is clearly stated in Article 5.5 of the Trust;

its second sentence provides: “Income taxes payable by any

subtrust shall be paid by the beneficiary of such subtrust.”

29 The quoted language is taken from the August 19, 2015

Order. The same legal conclusion appears in the probate court’s

December 29, 2015 Statement of Decision, following the filing of

the October 23, 2015 Order from which Raymond’s appeal is

taken.

39



the Ranch was valued for allocation among the siblings at its sale

price, was erroneous.

Raymond supports his argument using the term “specific

gift,” and, although the probate court did not use that term in its

ruling, it is an acceptable shorthand to analyze Raymond’s

contention. If Raymond were correct, he would be the sole

distributee of the $4.5 million net proceeds of the sale of the

Ranch (the difference between the sale price of $14 million and

the sum of $7.2 million [the valuation of the Ranch on the date of

Arthur’s death] and the $2.3 million in taxes paid])—and would

additionally share in 35 percent of the remainder of the Trust

estate.30

On appeal, we review the probate court’s ruling, not its

reasons, and affirm if the ruling is correct albeit the reasons are

not; we also resolve any ambiguities in favor of affirmance. (See,

e.g., In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [“A

judgment or order of a lower court is presumed to be correct on

appeal, and all intendments and presumptions are indulged in

favor of its correctness.”]; Munoz v. Olin (1979) 24 Cal.3d 629,

635-636.)

The probate court’s characterization of this gift (and of all

gifts made in the Trust) was a legal determination on undisputed

facts which we review de novo. (People ex rel. Lockyer v.

Shamrock Foods, supra, 24 Cal.4th 415, 432; Lozada v. City and

County of San Francisco (2006) 145 Cal.App.4th 1139, 1145.) As

we now discuss, that characterization was in error, but, once

corrected, it does not alter the probate court’s determination to

30 The actual amounts would be slightly different when costs

of sale and expenses of operation of the Ranch are included.

40



value the Ranch at its sale price in determining the distribution

of the remainder of the Trust (including in the amount to be

distributed the net proceeds from the sale of the Ranch) among

the Blech Children.31

A. Lexicon of gifts

A revocable living trust such as that under review in this

case contains transfers to be effective on the death of the settlor.

Such transfers are statutorily described as “at-death transfers.”

(Prob. Code, § 21104.) The Probate Code provides for six types of

31 We raised this issue with the parties in advance of oral

argument, offering each an opportunity to submit a letter brief on

this issue. The issue was also addressed at oral argument. Our

determinations in this opinion include consideration of the

parties’ written and oral views.

We address the proper construction of the terms of the

Trust as it involves an issue of law to be decided in this case on

undisputed facts. Such matters may be raised for the first time

on appeal. (Sea & Sage Audubon Society, Inc. v. Planning Com.

(1983) 34 Cal.3d 412, 417 [appellate court may address purely

legal questions presented for the first time on appeal when no

factual determinations are required]; Ward v. Taggart (1959) 51

Cal.2d 736, 742 [same].) And, as we held in Tsemetzin v. Coast

Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1341,

footnote 6, it makes no difference that the issue is first raised on

appeal by the court rather than the parties, as long as the parties

have been given a reasonable opportunity to address it. (Accord,

Barton v. New United Motor Manufacturing, Inc. (1996) 43

Cal.App.4th 1200, 1207.) We may also do so because Raymond’s

theory on appeal requires that we interpret the terms of a written

instrument (as well as the text of statutes), and there is no

question of fact presented, only a question of law. (Palmer v.

Shawback (1993) 17 Cal.App.4th 296, 300.)

41



“at-death transfers”: “(a) A specific gift is a transfer of

specifically identifiable property. [¶] (b) A general gift is a

transfer from the general assets of the transferor that does not

give specific property. [¶] (c) A demonstrative gift is a general

gift that specifies the fund or property from which the transfer is

primarily to be made. [¶] (d) A general pecuniary gift is a

pecuniary gift within the meaning of Section 21118.[32] [¶] (e)

An annuity is a general pecuniary gift that is payable

periodically. [¶] (f) A residuary gift is a transfer of property that

remains after all specific and general gifts have been satisfied.”

(Prob. Code, § 21117.)

We observe, however, that while the parties and the

probate court directed their analysis of the terms of the Trust to

discuss application of these several types of postdeath transfers,

to properly construe the terms of the Trust we must acknowledge

the terms of Probate Code section 21102. That section provides:

“(a) The intention of the transferor as expressed in the

instrument controls the legal effect of the dispositions made in

the instrument. [¶] (b) The rules of construction in this part [of

the Probate Code] apply where the intention of the transferor is

not indicated by the instrument.”33 (Cf. Probate Code § 16335,

32 Section 21118, subdivision (b) defines a pecuniary gift as “a

transfer of property made in an instrument that either is

expressly stated as a fixed dollar amount or is a dollar amount

determinable by the provisions of the instrument.”

33 Probate Code section 21102, subdivision (c) provides:

“Nothing in this section limits the use of extrinsic evidence, to the

extent otherwise authorized by law, to determine the intention of

the transferor.” As we discuss in the text, the only extrinsic

42



subd. (a)(1), which requires that the terms of the particular

dispositive plan be carried out even when they differ from that

which would otherwise be called for under a statute.)

We also consider in construing the terms of the Trust,

Probate Code section 21121, which provides, “All parts of an

instrument are to be construed in relation to each other and so

as, if possible, to form a consistent whole. If the meaning of any

part of an instrument is ambiguous or doubtful, it may be

explained by any reference to or recital of that part in another

part of the instrument.” And, Probate Code section 21122

advises: “The words of an instrument are to be given their

ordinary and grammatical meaning unless the intention to use

them in another sense is clear and their intended meaning can be

ascertained. Technical words are not necessary to give effect to a

disposition in an instrument. Technical words are to be

considered as having been used in their technical sense unless (a)

the context clearly indicates a contrary intention or (b) it

satisfactorily appears that the instrument was drawn solely by

the transferor and that the transferor was unacquainted with the

technical sense.”

The common law provides additional guidance: “The

interpretation of a will or trust instrument presents a question of

law unless interpretation turns on the credibility of extrinsic

evidence or a conflict therein. [Citations.]” (Burch v. George

(1994) 7 Cal.4th 246, 254; see Tunstall v. Wells (2006) 144

Cal.App.4th 554, 561 [same]; see Prob. Code, § 21102, subd. (c).)

Our Supreme Court has explained: “Extrinsic evidence is

‘admissible to interpret the instrument, but not to give it a

evidence in the record in this case is the drafting attorney’s

memorandum. (See, footnote 34, post.)

43



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.” (Parsons v. Bristol Development Co. (1965)

62 Cal.2d 861, 865; see Gardenhire v. Superior Court (2005) 127

Cal.App.4th 882, 888.)

In the case of undisputed evidence but conflicting

inferences, we apply the following standard of review: “[W]here

the evidence is undisputed and the parties draw conflicting

inferences, [the appellate court] will independently draw

inferences.” (City of El Cajon v. El Cajon Police Officers' Assn.,

supra, 49 Cal.App.4th at p. 71; see Parsons v. Bristol

Development Co., supra, 62 Cal.2d at p. 866, fn. 2.) As noted,

ante, Probate Code section 21121 requires that we construe all

parts of the instrument in relation to the others to form “a

consistent whole.” And, if the meaning of any part of an

instrument is ambiguous or doubtful, “it may be explained by any

reference to or recital of that part in another part of the

instrument.” (Ibid.; see Colburn v. Northern Trust Co. (2007) 151

Cal.App.4th 439, 448, fn. 6; Siegel v. Fife (2015) 234 Cal.App.4th

988, 996.)34

We observe that, applying these principles, this district has

previously held that there “is no substantial difference between

34 The memorandum, dated January 18, 2011, prepared by

the lawyer who drafted the Trust characterizes article 5.4 as

applying to the “Division of the Remaining Trust Estate”; thus,

the lawyer who drafted the Trust viewed article 5.4 in the same

manner as we describe it in the body of this opinion, i.e., as

dividing the remainder, or residue, of the estate.

44



the words ‘remainder’ and ‘residue,’ ” and that “in construing a

will [or a trust] the aim is to ascertain the meaning of the

testator [or settlor] rather than the meaning of the words used.”

(Estate of Moorhouse (1944) 64 Cal.App.2d 210, 214-215.)

B. Structure and Terms of the Trust

The principal dispositive provisions of the Trust are set out

in its article 5. After gifting his personal effects to his children

“in such manner as they mutually agree” (art. 5.2), and making

specific pecuniary gifts to family members and others (art. 5.3),

Arthur directed the disposition of the remainder of his trust

estate in a separate paragraph, headed “Division of Remaining

Trust Estate” (art. 5.4), as follows: “As soon as reasonably

practicable after the death of Grantor and after distributions, if

any, pursuant to the provisions of Paragraphs 5.2 and 5.3, and

further subject to the provisions of this Paragraph, the Trustee

shall divide the remaining Trust estate into separate shares as

follows. . . .” In the next four subparagraphs, Arthur allocated

the “Remaining Trust Estate” – by percentages – to his four

children, subject to certain adjustments for outstanding loans,

and in the case of Jenifer and Raymond, the direction to include

in that child’s share “any interest that Grantor or this Trust

directly or indirectly owns in [described real property] . . . .”

Article 5.5 provides: “All estate taxes payable by this Trust

shall be paid by the beneficiaries listed in Paragraph 5.4 above in

direct proportion to their respective percentage shares. Income

taxes payable by any subtrust shall be paid by the beneficiary of

such subtrust.”

Cash flow was to be distributed to each beneficiary

quarterly from his or her share. (Art. 5.6.) Finally, the principal

given to each beneficiary was to be distributed to that beneficiary

45

over 10 years, beginning on the first anniversary of Arthur’s

death. (Art. 5.7.)

In construing the terms of the Trust, as noted, we seek to

ascertain the grantor’s intent by the language of the document as

of the time he signed it. (Estate of Helfman (1961) 193

Cal.App.2d 652, 655.) Each case depends upon its particular

facts. (Ibid., citing Estate of Henderson (1911) 161 Cal. 353, 357.)

C. Discussion

We do not agree with the probate court’s ruling that the

instruction in article 5.4 that Raymond’s 35 percent share was to

include the Ranch made it “not a residuary gift.”35 Because the

division directed by article 5.4 was to be made only after all other

gifts have been made, it is clear that article 5.4 was intended to

dispose of the remainder (or residue) of Arthur’s estate. Gifts

which are made from the assets which remain in an estate are

gifts of remainder or residuary interests. This end-stage funding

is entirely consistent with Probate Code section 21117,

subdivision (f), which states: “A residuary gift is a transfer of

property that remains after all specific and general gifts have

been satisfied.” It is also consistent with the case authority cited,

ante.

Most importantly, our construction of article 5.4 carries out

the “intention of the transferor as expressed in the instrument

. . . .” (Prob. Code, §21102, subd. (a).) Had Arthur intended the

gift of the Ranch to be a specific gift, he had the mechanism to so

designate it. Indeed, he had made such a gift to Raymond in

article 5.3; there, he gave Raymond a specific gift, also of real

35 The probate court reached a similar conclusion as to the

Montana property allocated to Jenifer’s share.

46



property, i.e., of the house and land that adjoined the Ranch,

using the following language: “(e) The Trustee shall distribute to

RAYMOND that certain real property . . . .” (We omit the specific

legal description of the land given, that included a home adjacent

to the Ranch.) This gift in article 5.3(e) was unconditional and

specific (as was a gift of a house to Jenifer, also set out in article

5.3), and was made with no language that is either conditional or

equivocal: Neither gift was dependent on any other event.

By contrast, the “gift” of the Ranch to Raymond in article

5.4 was only a funding mechanism for the actual gift – which was

stated as a percentage of the remainder or residue of the Trust

estate. Thus, the gift of the Ranch to Raymond was to occur only

if at the time of the distribution of the remainder of the trust

assets, those assets included the Ranch. (Art. 5.4(b).) What was

not conditional was that Raymond was to receive 35 percent of

the residue regardless of whether the Ranch was part of the

Trust estate: that was a residuary gift to Raymond.36

This means of expressing the desire that, if the Ranch were

in the estate at the date of distribution, then it was to be used in

funding Raymond’s share of the residue, rendered the gift of the

Ranch an instruction to the Trustee on that with which to fund

the percentage gift which Arthur unequivocally made to

Raymond if the Ranch were an asset of the Trust at that time,

rather than a mandate that Raymond was to receive the Ranch

as well as 35 percent of the remainder or residue of assets in the

Trust on their distribution. Such an instruction is entirely

36 The headings of the two articles of the Trust also suggest a

difference in the nature of the gifts made. Article 5.3 is headed

“Specific Distributions” and article 5.4 is headed “Division of

Remaining Trust Estate.”

47



consistent with Raymond’s long-standing and intense

involvement with Ranch operations. One also must consider that

Raymond receives a substantially greater percentage of the

residue than any other sibling. We would expect that, had

Arthur intended Raymond to also receive the entirety of any

appreciation in the value of the Ranch, Arthur would have

expressly so stated in the Trust.

Setting aside our conclusion that Arthur’s intention was to

make the gifts of the balance of his estate as discussed above (as

expressed in Probate Code section 21102), in the context of

Probate Code section 21117 upon which the parties presented

their arguments to the probate court, the direction in article

5.4(b) (and in article 5.4(c) with respect to Jenifer) concerns how

to fund Raymond’s percentage share of the remainder or residue

and not what specific property to give. In the context of section

21117, the gift to Raymond in article 5.4(b) was a gift of a

35 percent share of the residue within the meaning of Probate

Code section 21117, subdivision (f), and not a specific gift as

defined in subdivision (a) of that statute.

The proper construction of residuary clauses which include

reference to specific property of a decedent has been an issue in

this state for many years. For example, in 1907, our Supreme

Court considered this matter in In re Painter’s Estate.37 (150 Cal.

37 In Painter’s Estate, the Supreme Court relied in part on

Civil Code section 1357, which defined “specific legacy” as follows:

“A legacy of a particular thing, specified and distinguished from

all others of the same kind, belonging to the testator, is specific; if

such legacy fails, resort cannot be had to the other property of the

testator.” (Former Civ. Code, § 1357, ¶ 1.) (The definition of

“specific gift” now is subdivision (a) of Probate Code section

48



498 (Painter’s Estate).) There, our Supreme Court was called

upon to determine whether a provision in the codicil to the will of

that decedent describing specific properties owned by the

decedent were specific gifts and for that reason not chargeable

with the payment of general legacies. (Id. at p. 503.) Because

the listing of specific properties to be devised in that will was

followed immediately by a statement that those properties were

to be given together with all of the decedent’s other property, the

court determined that they were part of the residue rather than

specific gifts. In reaching this determination, our Supreme Court

stated: “In short, the question is purely one of construction. The

21117.) Paragraph 4 of former Civil Code section 1357 defined a

residuary legacy as follows: “A residuary legacy embraces only

that which remains after all the bequests of the will are

discharged.”

At that time, Civil Code section 1317 provided: “A will is to

be construed according to the intention of the testator.” And

section 1318 provided: “In case of uncertainty arising upon the

face of a will, as to the application of any of its provisions, the

testator’s intention is to be ascertained from the words of the will,

taking into view the circumstances under which it was made,

exclusive of his oral declarations.” (See, Estate of Loescher (1955)

133 Cal.App.2d 589, 593-594 [“Whether a devise is residuary,

general, specific or administrative depends upon the intention of

the testator as shown by the entire will. [Citations.]”].)” The

statutory definitions of specific and residuary legacies had not

changed significantly from the time of the decision in Painter’s

Estate when Estate of Loescher was decided. (Compare former

Prob. Code, § 161, enacted by Stats. 1931, ch. 281, p. 595; and see

Historical and Statutory Notes, 52 West’s Ann. Prob. Code (2002

ed.) foll. former § 161, p. 129, with Civ. Code, § 1357, extant at

the time of the decision in Painter’s Estate.)

49



testator’s intent is to be determined in each case from a

consideration of the particular language employed. A bequest or

devise of the residue of an estate is general, because such residue

is not ascertainable at the time the will is made. The fact that, in

giving such residue, the testator describes, as included in it or

forming a part of it, certain specific property owned by him, does

not alter the character of the residuary gift.” (Id. at p. 507.)

Confirming this reasoning, the court pointed out that a

legacy is specific only when, if that property is not vested in the

decedent at the time of his or her death, it fails, citing Civil Code

section 1357.38 (Painter’s Estate, at p. 505.)

The language of the Trust in this case presents an even

clearer statement of the nature of the gift of designated property

than in Painter’s Estate: the gift here is of 35 percent of the

residue, utilizing the Ranch as an asset with which to fund the

gift to Raymond in recognition of his long and close association

with it, but a 35 percent share nonetheless, even if the Ranch is

no longer owned at the time of Arthur’s death.

VII. ALLOCTION OF ASSETS IN THE RESIDUARY

SHARE OF THE TRUST

In resolving Raymond’s Supplemental Objections, the

probate court validated the Trustee’s use of the proceeds from the

sale of the Ranch to calculate and to fund the gifts to be made

pursuant to article 5.4, including Raymond’s 35 percent share.39

38 See footnote 37, ante.

39 In its August 19, 2015 Order overruling objections, the

probate court concluded that the Ranch was to be valued at $14

million for purposes of distribution of the residue to the Blech

Children – even though it had erroneously concluded it was a

50



While we do not agree with the reasoning of the probate court, we

reach the same result because, as just discussed, Arthur intended

the Ranch merely as a means to fund the gift to Raymond of a

35 percent share of the residue rather than as a separate gift.40

In his appeal, Raymond elected to adopt the probate court’s

flawed analysis that the gift was a specific gift, doing so as the

means to overturn the probate court’s October 23, 2015 Order

and to obtain a determination on appeal that the Ranch was to be

valued at its date-of-death value. While we find the probate

court’s reasoning flawed in part, we are not persuaded by

Raymond’s arguments that the probate court’s conclusion as to

date of valuation was in error. As Raymond has presented no

other argument warranting reversal, we affirm the probate

specific gift. In that Order, the probate court wrote: “[The

Trustee’s] treatment of the Blech Ranch gift (including valuation

of Blech Ranch at $14 million for purposes of calculating

Raymond Blech’s percentage interest in other Trust assets . . .),

was proper.” That valuation was confirmed in its October 23,

2015 Order in the grant of the Petition.

40 The Trustee advances an additional reason for using dateof-distribution

values. Thus, it points out that article 5.7 of the

Trust requires that distributions to the siblings are to be made

over a 10-year period, and, if Raymond were to die prior to the

end of that term, his residuary share is required to be revalued at

its then “fair market value” and divided among his remaining

siblings. The Trustee then argues that the need for annual

revaluations (and for revaluation should Raymond die prior to

the end of the 10-year term) supports the Trustee’s contention

that it was Arthur’s intent that the assets distributed in the

residue of the estate are to be valued at their fair market value

on the several dates of their distribution rather than on Arthur’s

death.

51



court’s conclusion. (In re Marriage of Arceneaux, supra, 51 Cal.3d

1130, 1133 [“A judgment or order of a lower court is presumed to

be correct on appeal”]; Munoz v. Olin, supra, 24 Cal.3d at pp. 635-

636.)

VIII. ATTORNEY FEES

Robert, Jenifer and Richard sought and were awarded

attorney fees, costs and expenses, based on the authorization for

recovery of those amounts in paragraph 23 of the 2014

Settlement Agreement. The probate court granted their motions

on January 7, 2016, awarding Robert and Jenifer $83,120, and

Richard $30,869.24. On March 18, 2016, the probate court

awarded Robert and Jenifer an additional $123,331.90.

On appeal, Raymond does not challenge the authority for

awarding such fees; nor does he challenge the reasonableness of

the fee awards made. Instead, he seeks to reverse these awards

only on the basis that he should prevail on the merits of his

appellate arguments.41 As he has not prevailed, and as he has

41 At argument, counsel for Robert and Jenifer argued that

Raymond had waived this argument by paying the attorney fee

awards and Raymond argued that he did so under compulsion

and thus did not waive, relying on Wisniewski v. Clary (1975) 46

Cal.App.3d 499, in which the appellant paid attorney fees under

compulsion of a trial court order requiring that they be paid

within 30 days of the order assessing them. (Id. at p. 502.) While

the record in this case does not include any evidence that the

attorney fee awards were ordered to be paid by a date certain or

that payment was made under threat of attachment or other

means of collection, we need not resolve the waiver argument as,

even if Raymond has not waived this contention, it fails as his

appeal is otherwise unsuccessful and he makes no other

argument to support his claim that the amounts awarded are not

due as explained in the text accompanying this footnote.

52



made no other argument to suggest the awards should be

overturned – and therefore waived any such contentions – we

affirm these awards.

The October 23, 2015 Order Settling the Trustee’s First Account, filed October 29, 2014, is affirmed. The Orders entered on January 7 and March 18, 2016, awarding attorney fees to Robert and Jenifer, and the Order entered on January 7, 2016,

awarding attorney fees to Richard, are affirmed. All other appeals are dismissed.

Richard, Robert and Jenifer shall each recover his or her attorney fees and costs on appeal from Raymond.