Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 05-22-2019
Case Style: Sunnie H. Han v. Richard Hallberg, Jr.
Case Number: B268380
Judge: Grimes, Acting P.J.
Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Los Angeles
Plaintiff's Attorney: Henry T. Heuer
Defendant's Attorney: Jeremy B. Rosen, Shane H. McKenzie, Richard D. Teitel and Peter A. Gelles
Description:
MoreLaw Virtual Receptionists
Never Miss Another New Client Call
In 1975, four dentists formed a partnership to acquire and
maintain a dental office building. In 1994, the then-partners
amended their agreement to allow one of the partners,
Dr. Richard Hallberg, to assign his partnership interest to his
living trust, and to substitute the trustee (then Dr. Hallberg) as a
general partner in place of Dr. Hallberg individually. When
Dr. Hallberg died 15 years later, litigation ensued over whether,
despite the substitution, Dr. Hallberg was still a partner at the
time of his death, triggering certain buyout provisions that
applied in the event of a partner’s death.
The trial court concluded the trust was not a separate legal
entity, and that Dr. Hallberg was a partner at the time of his
death. The court stated it was required to follow Presta v. Tepper
(2009) 179 Cal.App.4th 909, 918 (Presta) (“when a trustee of an
ordinary express trust enters into a partnership relationship in
his capacity as trustee, it is he, and not ‘the trust’ which is the
party to that agreement”).
We conclude Dr. Hallberg was not a partner when he died.
His trust, or the trustee of his trust, was the partner. While a
trust cannot act in its own name and must always act through its
trustee, a trust is a “person” that may associate in a partnership
under the Uniform Partnership Act of 1994 (UPA; Corp. Code,
§ 16100 et seq.), based on the plain language of the UPA’s
definition of “person.” The clear statutory language is reinforced
by other provisions of the statute, as well as by its legislative
history. We see no contradiction between the terms of the UPA
and California trust law, and to the extent Presta suggests
otherwise, we disagree. Accordingly, we reverse the trial court’s
judgment.
3
FACTS
1. The Background
In 1975, four dentists formed a general partnership called
SM-Ensley Dental Group, for the purpose of “acquiring, operating
and maintaining a dental office building.” The 1975 partnership
agreement required partners to be practicing dentists.
In 1989, the partners amended the agreement’s provisions
on withdrawal, retirement or death of a partner. These
amendments allowed the estate of a deceased partner to retain
the interest of the deceased partner and to continue operation of
the partnership. This could be done by notifying the surviving
partners in writing, by first-class mail, “within not more than
90 days from the date of death . . . .”
1 If the estate failed to
exercise this option within 90 days, the surviving partners could
opt to purchase the interest of the deceased partner by notifying
the estate, “within 60 additional days,” by a writing sent “by firstclass
mail, to the representative of the deceased partner . . . .”2
1 The 1989 amendments stated: “In the event of the death of
any partner during the term of this partnership, the operation of
the partnership shall continue if the estate of the deceased
partner, either by his personal representative or successor
trustee, within not more than 90 days from the date of death,
notifies the surviving partners in writing, by first-class mail, of
the election of the estate to retain the interest of the deceased
and to continue operation of the partnership on behalf of the
estate or its distributees, which shall be subject to all of the
obligations to the partnership of the deceased partner.”
2 The 1989 amendments stated: “In the event the personal
representative or the successor trustee of the deceased partner
fails to exercise such option by giving notice to the surviving
partners within 90 days, as specified hereinabove, the surviving
4
The 1989 amendments also provided for the valuation of the
deceased partner’s interest “by the appointed California Probate
Referee in any probate proceedings . . . .”
3 If the remaining
partners elected not to purchase the interest of the deceased
partner, the partnership assets were to be “distributed in kind to
each of the partners or to their respective personal
representatives or trustees according to their respective
interests,” and governed by the law relating to tenants in
common.
In 1990, Eric L. Loberg became a partner. In 1994, the
general partners were John Schrillo (26 percent), Richard W.
partners shall thereafter, within 60 additional days, have the
option to continue the partnership business and purchase the
interest of the deceased partner, which option may be exercised
by said remaining partners by giving notice of the exercise of
such option to the deceased partner’s estate by a writing sent, by
first-class mail, to the representative of the deceased partner, at
a price and on the terms and conditions hereinafter set forth.”
3 The 1989 amendments stated: “In the event of the death of
a partner during the term of this partnership agreement, the
valuation of his interest for the purchase by the remaining
partners shall be equal to the value fixed by the appointed
California Probate Referee in any probate proceedings or trust
termination in said deceased partner’s estate as reduced by an
amount equal to 7% of the gross valuation, the deceased partner’s
debts to the partnership and said deceased partner’s share of the
partnership debts. If no appointment is made within 90 days of
the date of death, the remaining partners shall request the
appointment of such referee as a non-probate matter, which
value shall be binding upon both the heirs of the deceased
partner and the remaining partners as hereinabove set forth.”
5
Hallberg (26 percent), John F. Griffee (24 percent), and Eric L.
Loberg (24 percent).
On September 12, 1994, the four partners again amended
the partnership agreement, this time to allow a substitution for
one of the general partners, Dr. Hallberg. The amendment
recited that the partnership agreement “contain[ed] no provisions
dealing with the assignment of partnership interests or the effect
upon the Partnership in the event of a substitution of a general
partner.” The parties then agreed to the assignment of
Dr. Hallberg’s partnership interest to Dr. Hallberg as trustee of
The Richard W. Hallberg Trust (the Hallberg Trust), as follows:
“The assignment of RICHARD W. HALLBERG’s
partnership interest to RICHARD W. HALLBERG, as
Trustee of THE RICHARD W. HALLBERG TRUST, shall
not cause a dissolution of the partnership. Upon the
consent of all general partners, RICHARD W. HALLBERG,
as Trustee of THE RICHARD W. HALLBERG TRUST,
shall be substituted as a general partner in place of
RICHARD W. HALLBERG, individually, provided that
such Trustee agrees in writing to be bound by the terms
and conditions of the Partnership Agreement and that such
Trustee accepts and assumes the rights, benefits,
responsibilities, and liabilities of the assignor general
partner.”
All four general partners consented to “the substitution of
RICHARD W. HALLBERG as Trustee of THE RICHARD W.
HALLBERT TRUST, under Declaration of Trust dated August 4,
1994, as general partner in place of RICHARD W. HALLBERG,
individually.” And Dr. Hallberg, “as trustee of THE RICHARD
W. HALLBERG TRUST,” agreed “to be bound by the terms and
6
conditions” of the partnership agreement, and “accept[ed] and
assume[d] the rights, benefits, responsibilities, and liabilities of
RICHARD W. HALLBERG, individually, as a general partner in
said partnership.”
In 2002, Dr. Loberg acquired Dr. Griffee’s 24 percent
partnership interest.
In 2003, Dr. Hallberg appointed his son, Richard Hallberg
Jr. (Hallberg Jr.) to serve as a cotrustee of the Hallberg Trust.
In 2009, Hallberg Jr. became the sole trustee of the
Hallberg Trust. (Hallberg Jr. apparently did not realize he was
the sole trustee until after the first phase of the court trial in this
case.)
On March 16, 2010, Dr. Hallberg died.
If Dr. Hallberg were still a partner when he died, then the
partnership agreement would give his estate 90 days (until
June 14, 2010) to notify the surviving partners “of the election of
the estate to retain” the deceased partner’s interest and to
continue operation of the partnership “on behalf of the estate or
its distributees.” No such notification was made, by June 14 or
any later time.
On June 16, 2010, Dr. Schrillo sent Hallberg Jr. various
partnership documents and information he had requested,
including the partnership agreement and amendments and
information on rentals, bank accounts, the mortgage, and so on,
also stating that copies of the documents “should be among your
father’s papers.”
If Dr. Hallberg were still a partner when he died, and his
estate failed to exercise its option to continue the partnership,
then the partnership agreement would give the surviving
partners the option, within 60 additional days (until August 13,
7
2010), to continue the partnership business and purchase
Dr. Hallberg’s interest, by giving notice “to the deceased partner’s
estate by a writing sent, by first-class mail, to the representative
of the deceased partner.”
On August 3, 2010, counsel for Drs. Loberg and Schrillo
wrote to Hallberg Jr., giving “formal notice that the surviving
partners hereby exercise their option to purchase the interest of
Dr. Richard Hallberg, deceased,” in the partnership.
On August 17, 2010, Hallberg Jr.’s lawyer responded to the
August 3, 2010 letter, referring, in pertinent part, to the 1994
amendment to the partnership agreement “relating to transfer of
Dr. Hallberg’s partnership interest to the Richard W. Hallberg
Trust.”
On August 31, 2010, Dr. Loberg and Dr. Schrillo
themselves sent a “second notice” of their exercise of “[their]
option to purchase the interest of Dr. Richard Hallberg,
deceased,” in the partnership.
On October 12, 2010, Hallberg Jr. wrote to Drs. Loberg and
Schrillo, responding to their August 31, 2010 letter. Among other
things, he stated the partnership interest was owned by the
Hallberg Trust; and for that and other reasons, the letter was not
a valid exercise “of any option you might or might not otherwise
have had to purchase the Trust’s Partnership Interest.”
Hallberg Jr. stated the Hallberg Trust was not obligated to sell
its partnership interest, “and that instead, pursuant to [the]
Partnership Agreement, the Partnership property is required to
be distributed to the remaining valid Partners, as tenants in
common.”
8
2. The Complaint
On September 6, 2011, Drs. Loberg and Schrillo (plaintiffs)
filed a complaint against Hallberg Jr. as successor trustee of the
Hallberg Trust (defendant).
4 The complaint recited that, after
exhaustive discussions, the parties were unable to agree on
terms, including the price, “to buy-out the interest of the Hallberg
Trust.” The complaint sought appointment of a probate referee
for evaluation of the interest of the Hallberg Trust in the
partnership; a mandatory injunction requiring defendant to
comply with the buyout terms of the partnership agreement; and
declaratory relief. A fourth cause of action sought damages for
defendant’s alleged breach of the partnership agreement.
3. The Trial
On July 9 and 10, 2012, the court held a bench trial on the
three bifurcated equitable claims, and issued a tentative decision
in October 2012. We briefly summarize the proceedings
pertinent to our resolution of this appeal.
The court held that the Hallberg Trust was not “a separate
legal entity that continues to own a partnership interest,” and
“[t]he partner in this case was Dr. Hallberg.” The court observed
that defendant’s effort to distinguish the Presta case was “valiant
but unavailing,” and that the court was required to follow Presta.
The court ordered the matter to proceed to the appointment
of a referee for valuation of the deceased partner’s interest.
In November 2012, defendant sought reconsideration or a
new trial, principally because he had discovered that the
4 During this litigation both plaintiffs died, and Sunnie H.
Han, as special administrator of the estate of Dr. Loberg, and
Dr. Schrillo’s wife, Kathryn Schrillo, as special administrator of
his estate, were substituted as plaintiffs.
9
Hallberg Trust had been restated in 2009 and that he was, at the
time of his father’s death, the sole trustee. He contended his
father therefore was not the holder of the partnership interest,
either as an individual or as trustee, on the date of his death.
The court permitted defendant to provide additional trial
testimony and evidence, and allowed further briefing by the
parties. These proceedings occurred in June and July 2013.
In a supplemental tentative decision in July 2013, the court
adhered to its previous ruling for the plaintiffs. The court viewed
the 1994 amendment “against [the] background” that all the
partners had been dentists and close friends, not legal
professionals, and “the only reference to a trustee in any of the
partnership documents . . . is the 1994 amendment.”5 The court
stated it “appears clear that based upon their familiarity and
mutual trust,” and “[w]hen read in the context of the full
agreement and the relationship of the partners, it would appear
that the individual partners expected to have some control over
which person they would be dealing with in managing the
partnership.”
The court also found that Dr. Loberg’s testimony “which the
defense brushes aside as self-serving,” also corroborated the
court’s interpretation. (Dr. Loberg testified “ ‘that this was a
method for Dr. Hallberg to avoid probate and some taxes.’ ” The
5 The court observed there were two references to trustees in
the 1989 amendment, but these “presumably refer[red] to
testamentary trustees.”
10
court found this testimony “conforms to this general sense of the
1994 amendment, but also is in line with the Presta holding.”)6
Litigation then continued over the appointment of a referee
and the appraisal of “the ‘Hallberg 26% Interest’ ” in the
partnership. In February 2014, the court appointed a referee and
required the referee to value the real property “as a Dental Office
Building in accord with the purpose of the partnership . . . and
the historical use of the building, rather than its ‘highest and
best use.’ ”
Five months later (during which there was further
litigation over communication with the referee and the
information he could consider), the referee valued the fee simple
interest in the real estate, as of July 27, 2014, at $3.7 million.
More litigation followed, with defendant objecting to the referee’s
report. In February 2015, the trial court stated its agreement
with the referee’s recommended valuation, and its intention to
permit the parties to raise issues still to be resolved that were not
part of the referee’s valuation.
In a second phase of the trial that took place in May 2015,
the court found no breach of contract, observing that defendant
was not a partner or signatory to the partnership agreement,
which did not require defendant’s agreement for the appointment
6 Dr. Loberg also testified that he never contemplated “at
any time up until today [June 19, 2013] that [he] would under
some circumstance be partners with somebody that’s a non
dentist with respect to the building.” (This cannot be so, because
as of 1989, the partnership agreement itself contemplated that
the estate of a deceased partner could retain the partnership
interest of a deceased partner.)
11
of a probate referee. The court found the buyout amount owed to
defendant was $723,366.7
Judgment was entered on October 7, 2015.
Defendant filed an appeal and plaintiffs filed a crossappeal.
In postjudgment proceedings, the court awarded certain
attorney fees and costs in favor of plaintiffs. Defendant filed an
appeal from the trial court’s order, and plaintiffs filed a crossappeal.
We ordered the appeals from the judgment and the
postjudgment order consolidated into a single appeal.
DISCUSSION
1. Appellate Motions
Defendant filed a motion for judicial notice along with his
opening brief. He requested judicial notice of legislative history
materials relating to the UPA, and of complaints in two lawsuits
relating to the partnership filed in 2001 and 2012. We grant the
motion as to the legislative history materials,8 and deny it as to
the complaints; the latter are irrelevant to our decision.
7 The buyout amount consisted of 26 percent of the referee’s
property valuation of $3.7 million, reduced by 7 percent as
required by the partnership agreement, and further reduced by
$171,294 in debts (for the mortgage, loans from partners, and
certain disputed expenses for improvements to the building).
8 Plaintiffs opposed defendant’s request for judicial notice,
contending the materials are irrelevant to the issues on appeal;
the request did not state whether judicial notice was taken by the
trial court; courts generally do not take judicial notice of evidence
not presented to the trial court; and the materials “would require
an undue expenditure of time for review.” A reviewing court has
12
Plaintiffs filed a motion to strike portions of defendant’s
appendix, contending the appendix includes five documents that
were not filed, admitted, marked for identification, or lodged with
the trial court. These include four inconsequential documents
that plaintiffs themselves state were contained in the exhibit
books defendant and plaintiffs brought to trial (two in
defendant’s exhibit book and two in plaintiffs’ exhibit book). The
fifth document plaintiffs want to strike is referee Keith Settle’s
2014 appraisal – over which the parties litigated for months, and
which is the basis for the buyout amount ordered in the judgment
on appeal. We find plaintiffs’ motion baffling and pointless, and
no legal authority requires us to grant it. We accordingly deny it,
and turn to the merits of the appeals.
2. Defendant’s Appeal
Defendant raises four claims of error on appeal. Because
our conclusion on the first claim is dispositive, we do not consider
defendant’s other challenges to the judgment and postjudgment
order.
As indicated at the outset, we cannot agree with the trial
court’s ruling, stated in the judgment, that “[a]t the time of his
death, Richard Hallberg, Sr., was one of three partners in the
SM-Ensley Dental Group partnership, and he held a 26% interest
in the partnership.” On the contrary, we find it incontrovertible
that Dr. Hallberg individually was not a partner when he died.
That much is clear from the express terms of the 1994
amendment to the partnership agreement. The four then-
the authority to take judicial notice of matters not before the trial
court (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325), and
plaintiffs’ proffered reasons for not doing so are not persuasive.
13
partners expressly consented to “the substitution of
[Dr. Hallberg] as Trustee of [the Hallberg Trust] as general
partner in place of [Dr. Hallberg] individually.” (Italics added.)
And Dr. Hallberg, “as trustee of [the Hallberg Trust],” agreed to
be bound by the terms of the partnership agreement and
assumed “the rights, benefits, responsibilities, and liabilities” of
Dr. Hallberg individually “as a general partner.”
We cannot ignore the express substitution of Dr. Hallberg
as trustee “in place of [Dr. Hallberg] individually.” The holder of
the partnership interest, for the 15 years before and at the time
of Dr. Hallberg’s death, was the trustee of the Hallberg Trust –
not Dr. Hallberg individually. That did not change when
Dr. Hallberg died. The whole point of the assignment of
Dr. Hallberg’s partnership interest to the trust was to avoid
having the partnership interest pass to Dr. Hallberg’s estate
when he died. Accordingly, we will not pretend the substitution
of general partners in 1994 did not happen.
That brings us to the legal point at issue: the claim that,
because an express trust under California law is not “an entity
separate from its trustee[],” a trust like the Hallberg Trust is not
a “person” that can participate in a partnership. We do not
agree. California’s UPA plainly contemplates the opposite result,
and we do not find Presta’s contrary assessment persuasive.
Our analysis begins with the UPA and general trust
principles, followed by an explanation of our differences with
Presta and the arguments raised by plaintiffs.
a. Trust principles and the UPA
Case precedents have long stated that under California
law, “a trust is not a person but rather ‘a fiduciary relationship
with respect to property,’ ” and “ ‘ “ ‘an ordinary express trust is
14
not an entity separate from its trustees.’ ” ’ ” (Moeller v. Superior
Court (1997) 16 Cal.4th 1124, 1132, fn. 3 (Moeller).) Thus, for
example, a trust cannot sue or be sued or otherwise act in its own
name; instead the trustee acts on behalf of the trust. (E.g.,
Powers v. Ashton (1975) 45 Cal.App.3d 783, 787.) Similarly, an
estate is not considered a traditional legal entity. (See Estate of
Bright v. Western Air Lines, Inc. (1951) 104 Cal.App.2d 827, 828
[“An ‘estate’ is not a legal entity and is neither a natural nor
artificial person.”].)
But the fact that a trust is a “relationship” and not an
entity separate from its trustees does not mean that a trust
cannot act – as always, through its trustee – as a partner under
general partnership law. California’s UPA expressly provides
that a trust may associate in a partnership.
Under the UPA, a partnership is “an association of two or
more persons,” and the term “person” is defined to include a
“trust.” (Corp. Code, § 16101, subds. (9) & (13).) Specifically, the
UPA defines a person as “an individual, corporation, business
trust, estate, trust, partnership, limited partnership, limited
liability partnership, limited liability company, association, joint
venture, government, governmental subdivision, agency, or
instrumentality, or any other legal or commercial entity.” (Id.,
subd. (13).) Thus, the statute on its face includes both a
“business trust” and a “trust” among the “person[s]” that may
associate in a partnership.9
9 In practice, family trusts do form partnerships. While no
legal challenge was at issue, there are references in California
cases to living trusts acting as partners in California
partnerships. (See, e.g., Stoltenberg v. Newman (2009)
179 Cal.App.4th 287, 290, 293 [referring to a family trust that
15
The plain definitional language of the UPA is, in our view
controlling. And other provisions of the UPA – specifically the
provisions identifying the events that dissociate a partner from
the partnership (Corp. Code, § 16601) – further show that the
statute contemplates no termination of partnership status when
the trustee of a trust is replaced or dies.
Section 16601 of the UPA states that a partner is
dissociated from a partnership “upon the occurrence of any of the
following events.” (Corp. Code, § 16601.) Those include, “[i]n the
case of a partner who is an individual,” the partner’s death. (Id.,
subd. (7)(A).) And, “[i]n the case of a partner that is a trust or is
acting as a partner by virtue of being a trustee of a trust,” a
partner is dissociated by “distribution of the trust’s entire
transferable interest in the partnership, but not merely by reason
of the substitution of a successor trustee.” (Id., subd. (8), italics
added.) (The same is true of a partner that is “an estate or is
acting as a partner by virtue of being a personal representative of
an estate.” An estate is dissociated from a partnership by
“distribution of the estate’s entire transferable interest in the
partnership, but not merely by reason of the substitution of a
successor personal representative.” (Id., subd. (9).))
b. Legislative history of the UPA
As we have said, we view the plain language of California’s
UPA as controlling. And we find nothing in the legislative
history materials defendant has presented that suggests any
contrary interpretation of that language.
The basis of California’s statute was a revised uniform
partnership act (RUPA or the model act), first approved and
was a general partner in two entities, and to “the partnerships
owned by” an inter vivos family trust].)
16
recommended for adoption in all states by the National
Conference of Commissioners on Uniform State Laws (the
Conference) in 1992, and again, with revisions, in 1994. The
Conference’s comments on the definition of “ ‘person,’ ” in 1992
and again in 1994, stated that the definition was “the usual
definition used by the . . . Conference.”10 As for the 1994 model
act’s provisions on events that dissociate a partner from the
partnership (substantively identical to those later adopted in
California), the Conference simply described the provision11 and
stated that it was “new” and was “inspired by” a provision of the
Revised Uniform Limited Partnership Act.
In 1996, the California Legislature enacted the
Conference’s 1994 model act, with modifications not pertinent
here. (9 Witkin, Summary of Cal. Law (11th ed. 2017)
Partnership, § 18, pp. 606-607.) The California legislative history
contains little relevant discussion of the definition of “person.”
The Legislature merely added other entities – limited
10 The definition of “person” was “an individual, corporation,
business trust, estate, trust, partnership, association, joint
venture, government, governmental subdivision, agency, or
instrumentality, or any other legal or commercial entity.” The
Conference also stated in its 1992 comments that “[a] limited
liability company is another legal entity within the definition of
‘person,’ ” and in its 1994 comments that the definition “includes
other legal or commercial entities such as limited liability
companies.”
11 The Conference stated the statute “provides for the
dissociation of a partner that is a trust, or is acting as a partner
by virtue of being a trustee of a trust, upon the distribution by
the trust of its entire transferable interest in the partnership, but
not merely upon the substitution of a successor trustee.”
17
partnerships, limited liability partnerships, and limited liability
companies – to the 1994 model act’s definition of “person.”
Similarly, the Legislature adopted without substantive change
the 1994 model act’s provision on the event that dissociates a
trust, or a trustee “acting as a partner by virtue of being a trustee
of a trust,” from the partnership. (Corp. Code, § 16601, subd. (8).)
That provision was in the bill as introduced (Assem. Bill No. 583
(1995-1996 Reg. Sess.) Feb. 17, 1995, § 2, p. 23) and remained
unchanged.
In short, there appears to have been no controversy over
the inclusion of a trust among persons who may form a
partnership – either when the Conference approved the model act
or during the passage of the UPA by the California Legislature.
c. Presta
Despite the plain language of the 1994 amendment to the
partnership agreement in this case, and the language and
legislative history of the UPA (which plaintiffs do not address),
plaintiffs rely on the Presta case to conclude that Dr. Hallberg
was a partner when he died. We are not persuaded.
In Presta, two men entered into a real estate investment
partnership, each acting in his capacity as trustee of a family
trust. The court held that the partners were “the men,” not “the
trusts,” and the death of one of the two men triggered the
provision of the partnership agreement requiring the partnership
to purchase the interest of a deceased partner. (Presta, supra,
179 Cal.App.4th at pp. 911, 919.)
Presta’s rationale was that under California law, a trust is
not “an entity, like a corporation, which is capable of entering
into a business relationship such as a partnership.” (Presta,
supra, 179 Cal.App.4th at p. 913.) An express trust “is merely a
18
relationship by which one person or entity holds property for the
benefit of some other person or entity.” (Ibid.) The court found it
“most important[]” that an express trust is not an entity separate
from its trustees (id. at p. 914), citing Moeller, supra, 16 Cal.4th
at page 1132, footnote 3 (“a trust is not a person but rather ‘a
fiduciary relationship with respect to property,’ ” and “ ‘ “ ‘is not
an entity separate from its trustees’ ” ’ ”).
Of course, we do not disagree with the principles expressed
in Moeller. But we do not see how the fact that a trust is not “ ‘an
entity separate from its trustees’ ” precludes the trustee from
“entering into a business relationship such as a partnership”
(Presta, supra, 179 Cal.App.4th at pp. 914, 913) on behalf of the
trust. As Moeller itself states, “the trustee has all the powers
needed for effective transaction of business on behalf of the
trust.” (Moeller, supra, 16 Cal.4th at p. 1132.)
Presta acknowledges that the UPA specifies that “persons”
who may form a partnership include both a “business trust” and
a “trust.” (Presta, supra, 179 Cal.App.4th at p. 915.) But Presta
points out that the UPA’s definition of “person” ends by including
“ ‘any other legal or commercial entity.’ ” (Presta, at p. 915,
quoting Corp. Code, § 16101, subd. (13), italics added in Presta.)
According to Presta, this “implies that it covers those listed only
to the extent they are, in fact, ‘legal or commercial entities.’ ”
(Presta, at 915.) “Thus what the statute actually provides is that
to the extent a ‘trust’ qualifies as a ‘legal or commercial entity,’ it
could also qualify as a ‘person’ capable of forming a partnership.”
(Ibid.)
We do not see any such implication in the terms of the
statute. For one thing, it cannot be reconciled with the inclusion
of “estate[s]” in the definition of persons that may associate as
19
partners. Nor does it explain the inclusion of both “business
trust[s]” and “trust[s].” Presta identifies “ ‘trust compan[ies]’ ”
and “real estate investment trusts” as “trust ‘entities’ recognized
under California law,”
12 that “might qualify as the type of entities
capable of forming a partnership,” while family trusts are merely
“fiduciary trust relationships” which do not. (Presta, supra,
179 Cal.App.4th at pp. 915-916.) But again, we see nothing in
trust or partnership law that supports the constraint Presta
imposes.
In the end, Presta distinguishes between a partner that is
“the trust itself” and a partner that is “ ‘acting as a partner by
virtue of being a trustee of a trust.’ ” (Presta, supra,
179 Cal.App.4th at p. 916, quoting Corp. Code, § 16601,
subd. (8).) Presta treats the former as a category available only
to “entities” like trust companies and real estate investment
trusts, and treats the latter (in our view, erroneously) as if they
were individual partners rather than trustees. (Ibid.) Presta
asserts that section 16601 of the UPA recognizes the distinction
(Presta, at p. 916), because it contains the language referring to a
partner “that is a trust or is acting as a partner by virtue of being
a trustee of a trust.” (§ 16601, subd. (8), italics added.)
But Presta, quoting the applicable language only in part,
completely ignores the whole point of Corporations Code
section 16601, which is to identify events that dissociate the
partner from the partnership. Whether the partner is “a trust” or
“is acting as a partner by virtue of being a trustee of a trust,”
makes no discernable difference; in both cases, the partner is not
12 The definition of “trust compan[ies]” to which Presta refers
was later repealed. (See Fin. Code, former § 107, repealed
Stats. 2011, ch. 243, § 1.)
20
dissociated from the partnership by the death of the trustee. On
the contrary, that partner, whether trust or trustee, is dissociated
only by “distribution of the trust’s entire transferable interest in
the partnership,” and not by “the substitution of a successor
trustee.” (§ 16601, subd. (8).)
In other words, it does not matter whether we identify the
partner as the trust or as the trustee that transacts business for
the trust. The result is the same. And Presta identifies nothing
in California trust law to suggest that, merely because a trust is
not a separate entity and cannot act except through its trustee, it
(or its trustee acting for it) cannot be a partner. We can think of
no reason why that should be so.
We end our discussion of Presta by pointing out that the
court there was faced with facts that differ to some extent from
the facts in this case. The court concluded that the partners “had
to be [the men] themselves” because the family trusts they
created “constituted mere relationships under California law.”
(Presta, supra, 179 Cal.App.4th at p. 917.) But the court found
its conclusion was “further bolstered” by language in the
partnership agreement that suggested that the two men, who
were the sole trustees of their respective trusts, “also intended
that interpretation.” (Ibid.; see id. at pp. 917-918.) Nothing of
the sort exists in this case. Instead, the 1994 amendment leaves
no doubt the four partners intended to substitute Dr. Hallberg as
trustee of his trust in place of Dr. Hallberg in his individual
capacity. They consented in writing to the substitution, and the
amendment required Dr. Hallberg as trustee to accept and
assume the responsibilities of Dr. Hallberg individually “as a
general partner in said partnership.” There is no suggestion in
the partnership agreement to the contrary.
21
d. Plaintiffs’ contentions
Plaintiffs contend that, “[s]eparate and apart from the
reasoning in Presta,” additional facts in this case “militate in
favor of the same outcome.” They do not.
Plaintiffs first argue that the 1994 amendment was
intended “to cover the single transaction of Dr. Hallberg’s
transfer to his revocable, family trust, and to no other,” and there
was no agreement to “multiple transfers and to include
strangers.” Similarly, plaintiffs contend the partners “did not
give consent to any other person or entity to substitute in as a
partner.” We understand plaintiffs to be telling us they did not
agree to “transfers” to successor trustees such as defendant.
While the argument suggests the partners did not understand
trust principles when they agreed to the substitution of
Dr. Hallberg as trustee of the Hallberg Trust for Dr. Hallberg
individually, that cannot change the legal effect of their
agreement. (Moeller, supra, 6 Cal.4th at p. 1131 [“The powers of
a trustee are not personal to any particular trustee but, rather,
are inherent in the office of trustee. It has been the law in
California for over a century that a new trustee ‘succeed[s] to all
the rights, duties, and responsibilities of his predecessors.’ ”].)
Plaintiffs point to the trial court’s conclusion that, “based
upon their familiarity and mutual trust, the partners expected to
control the membership of the partnership.” It is hard to know
what to make of that, because as discussed earlier, long before
the 1994 amendment, the partners had agreed that the estates of
deceased partners could retain the deceased partner’s interest in
the partnership. The beneficiaries of a deceased partner’s estate
are no less “strangers” than a successor trustee upon the death of
the original trustee. So, plaintiffs’ suggestion that the partners
22
did not intend to allow a successor trustee to remain in the
partnership simply does not withstand scrutiny.
Plaintiffs then argue that the 1994 amendment was
ambiguous, and that Dr. Loberg testified to his understanding
that the trust was a method “ ‘for Dr. Hallberg to avoid probate
and some taxes,’ ” and that he (Dr. Loberg) never contemplated
that he would be partners with a non-dentist. But as we have
stated earlier, there is nothing ambiguous about the 1994
amendment, and Dr. Loberg’s subjective understanding (which is
also contrary to the 1989 amendment) cannot change that.
(Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 93
[“courts must also presume parties understood the agreements
they sign, and that the parties intended whatever the agreement
objectively provides, whether or not they subjectively did”].)
In short, none of these “additional facts” requires or allows
a different outcome.
e. Conclusion
To summarize: It is quite clear from the language of the
1994 amendment that Dr. Hallberg individually was not a
partner when he died. There is simply no way to get around this
point. It is also quite clear from the language of the UPA that a
trust, as well as a business trust and an estate, is a person that
may associate with other persons in a partnership. There is no
way to get around that either. And it is quite clear from the UPA
that the appointment of a successor trustee does not dissociate a
partner that is a trust (or is acting as a partner by virtue of being
a trustee of a trust) from the partnership. To the extent that
Presta suggests otherwise, we are compelled to disagree.
As a consequence of these points, it is necessarily the case
that, because Dr. Hallberg individually was not a partner when
23
he died, his death did not require his estate to make an election
to retain his interest, as that interest had long ago been assigned
to the trustee of the Hallberg Trust, and did not pass to
Dr. Hallberg’s estate. The Hallberg Trust, or its trustee acting as
a partner by virtue of being the trustee, continues to be a partner
in the SM-Ensley Dental Group along with the estates of
Dr. Schrillo and Dr. Loberg.
2. Plaintiffs’ Cross-appeal
In their cross-appeal, plaintiffs contend the trial court
should have used the date of Dr. Hallberg’s death as the date of
valuation of his partnership interest; that the court erred when it
did not award attorney fees to plaintiffs as prevailing parties
under Civil Code section 1717; and that certain distributions of
net income to defendant after Dr. Hallberg’s death should have
been deducted from the buyout price. These claims are all moot
in light of our ruling on defendant’s appeal.
Outcome: The judgment and postjudgment order are reversed, and
the trial court is directed to enter judgment in favor of defendant.
Defendant is to recover his costs on appeal.
Plaintiff's Experts:
Defendant's Experts:
Comments: